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HomeMy WebLinkAboutNotice PLANNER 1/29/2008 .. .. .l .... -, rvf . AFFIDAVIT OF SERVICE. R E C E IVE D JAN 2 92008 STATE OF OREGON } }ss. } By:~~d.J f;M~ County of Lane I, Brenda Jones, being first duly sworn, do hereby depose and say as follows: . 1. I state that I am a Secretary for the Planning Division of the Development Services Department, City of Springfield, Oregon. 2. I state that in my capacity as Secretary, I prepared and caused to be. mailed copies of Notice of Decision of the Springfield City Council regarding Appeals of Marcola Meadows Master Plan. (See attachment "A") on January 29, 2008 addressed to (see Attachment "B"), by causing said letters.to be pl~ced in a U.S. mail box with postage fully prepaid thereon. tk Brenda Oones . Planning Secretary STATE OF OREGON, County of Lane -1Ilf1LUAMV ;)11_, 2008 Personally appeared the abov~ named Brenda Jones, ~ho acknowledged the foregoing instrument to be their voluntary act. Before me: . OFFICIALSEAl . . . DEVETTE KEllY . . NOTARY PUBliC. OREGON COMMISSION NO. 4211351 MY COMMISSION EXPIRES AUG. 15, 2011 ~fi. .lVJtI .. My Commission Expires: ~J/5lJI__ , MAILING DATE OF NOTICE: January 29, 200S DATE OF DECISION: January 2S, 200S EFFECTIVE DATE: January 2S, 200S JOURNAL NUMBER: ZON200S-00002 through -OOOOS APPELLANTS IN NAME: SC Springfield LLC; Donna Lentz; Philip Newman; Dennis Hunt; Clara Shevchinski; Wesley Swanger; and Nick Shevchinski The appellants appealed the Planning Commission's decision of December 20, 2007, to approve, with 53 conditions, SC Springfield LLC's Master Plan application. The SC Springfield LLC appeal specifically concerned Condition #27, proportionality, delegation of authority and imposition of conditions not justified by the criteria of approval. The individual appeals mainly concerned procedural issues such as notice and participation at hearings. On January 2S, the City Council held a public hearing on the appeals submittals. Before hearing testimony, the City Council voted to hold the hearing as "de novo" to allow anyone with an,interest in the hearing to offer testimony, even new testimony. The City Council also voted to deny appellants Philip Newman, Dennis Hunt and Clara Shevchinski "standing" because they did not participate in the Planning Commission public hearings. The City Council's action was to hold a de novo hearing allowing these individuals to participate in the hearing, but they did not testify. [After the procedural votes, the City Council heard testimony from four appellants: SC Springfield LLC, Donna Lentz, Nick Shevchinski, and Wesley Swanger; and from Nancy Falk, Sean Morrison, Darlene Hrouda and Gail Wagenblast. There were two letters entered into the record; from G. K. Haigler and from Chris Clemow. After hearing the testimony, the City Council voted 5-1 to deny all ofthe appeals before them and uphold the planning Commission's decision, as clarified in the staff report with regard to Condition #27, based on the Commission's findings and conclusions, and because nothing presented as testimony presented a compelling reason to do othelWise. If you have questions concerning the decision of the City Council in this matter, please contact Gary M. Karp, Senior Planner at 541.726.3777. E-mail address: okarq@ci.sorinafield.or,us. The adopting ordinances, along with supporting staff report and documents, are available for review between S:OOAM and 4:00PM, at the Development Services Department counter, Springfield City Hall, at 225 Fifth Street. These documents can be e-mailed to interested parties if an e-mail address is provided. All parties are advised that a Notice of Intent to Appeal conforming to the requirements of the Oregon Revised Statutes 197.S30(9) shall be filed on or before the 21st day after the City Council's decision. All parties are further advised to consult an attorney or land use consultant regarding their appeal. . Satre & Associates Attention Rick Satre 202 East Broadway, Suite 480 Eugene, Oregon 97401 ZON2008-00004 Philip M: Newman 260 S. Mill Creswell, Oregon 97426 ZON200B-OOOO7 Wesley O. Swanger \ 2415 Marcola Road . Springfield, Oregon 97477 Sean Morrison Riverfront Center 1515 SE Water Ave., Suite 100 Portland; Oregon 97214 GKHaigler 1182 "F" Street Springfield, Oregon 97477 ZO,N200B'00002 SC Springfield LLC 7510 Longley Lane, Suite 102 Reno, Nevada 89511 ZON200B-00005 Dennis Hunt 3044 Yolanda Avenue Springfield, Oregon 97478 . ZON200B-OOOOB Nick Shevchynski 2347 Marcola Road Springfield; Oregon 97477 Darlene Hrouda 2595 Marcola Road Springfield, Oregon 97477 Christopher Clemow Riverfront Center 1.515 SE Water Ave., Suite 100 Portland, Oregon 97214 ZON200B-00003 Donna Lentz 1544 E Street Springfield, Oregon 97477 ZON200B-00006 Clara Shevchynski 2315 Marcola Road Springfield, Oregon 9747y Nancy Falk 2567 Marcola Road Springfield, Oregon 97477 Gail Wagenblast 2457 Otto Street Springfield, Oregon 97477 Date Received: JAN 2 4 2008 .. . Original Submittal '1(.7\ AFFIDAVIT OF SERVICE. 1\OJ\-f STATE OF OREGON) )ss. County of Lane . ) I, Karen LaFleur, being first duly sworn, do.. hereby depose and say as follows: 1. I state that I am a Program Technician for the Planning Division of the Development Services Department, City of Springfield, Oregon. 2. I state that in my capacity as, Program Technician, I prepared and caused to be mailed copies of~2oo8.llOXl5 ~-fJMv>>u '1:Iwit-IH.MI1b?llIi.km' 11t<?f &'C (See attachment nAn) on ----1/2'4- .2008 addressed to (see l'f/a.rC6-k ~ Attachment Bn), by causing said "letters to be placed in a U.S. mail box with postage fully prepaid thereon. 'JI~~~ KA~~ LaFLEUR '-..j r STATE OF OREGON, County of Lane t/.- , 2008. Personally appeared the above named Karen LaFleur, nician, who acknowledged the foregoing instrument to be their voluntary e: ?--~~~-~--:..-......-.....-.....~ .~~~~--~~~":- . OFFICIAL SEAL , SANDRA MARX j \. NOTARY PUBLIC - OREGON j COMMISSION NO. 385725 ~ MY COMMISSION EXPIRES NOV. 12. 2008 C:~~~_'~_'e"'S',::-':::-~~..;;~' . ~ 'on MJi f My Commission Expires: 11//2- /ZOOf> I , . L~ / Memorandum City of Springfield Date: To: From: Subject: January 23, 2008 Gary Karp, Planner III Y1 A Brian F, Barnett, P.E., PTOE, Traffic Engmeer/~ Marcola Meadows Master Plan - Condition 27 Please. include this memorandum in the [mal Council Agenda package concerning the appeal of Condition 27 by applicant Tbis information supplements the Council Agenda package. Tbis memorandum and attached conceptual drawing presents the fundamental elements of the access lane, the roundabout at the arterial and collector roads intersection, the "T" intersection at site driveway on the arterial, and a connection between the access lane and . the arterial to visually describe how Condition 27 sections I, 2, 3 and 4 may be implemented. The drawing does not show right of way lines and it is expected that during a design process that the improvements shown in the drawing would be closer to the southern right of way line than shown here. The improvements, as shown, use approximately 1.8 acres "of applicant's land for Marcola Road. Land used for Martin Drive is not included in the estimate since right of way for Martin Drive is necessary in all cases. It is likely that less land will be needed when the final design work is undertaken. Please reference staff report at Attachment 1-8 where Springfield Municipal Code Section 3.(Jl4 Plan Approval Required, states that "Engineered plans for all public works projects proposed for construction within the city shall be subInitted to the public works department for approval prior to start of any construction work." And please reference staff report at Attachment I ~I 0 where the staff response describes the impacts in relation to the exaction and that an exaction up to two acres is not disproportionate to the impact Direct access from neighborhood driveways to the arterial road that will have traffic volumes increase by 158% over predevelopment levels will be an unsafe traffic condition. The access lane runs along the southern right of way and provides the neighborhood residents a low volume, low speed connection between individual driveways and the arterial roadway and eliminates the need for vehicles to backup directly into the arterial street. Please reference staff report at Attachment 1-9 where Springfield Development Code Section 4.2-105, Public Streets, requires mitigation of "unsafe traffic conditions." .r. ..Attachment 6C Jar,'lafY.2008:... ""?lIlt"''"'; . 'i:J:"/; ", -< .." ~, .. . ~ , .- '),j~(l .;, ,fi~1 . . . ..,.,.._._~ ."~. 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':'t""~I:it::~~:3~~~::~.t'llf~;j~~~; /~!fl.?:l AI " I, ~ ... . . ,.. . '. 'Ii I.li .:" ,. .... ~~~';:'''''~ :."'.... ___' ,{. "", "'" '-"~.-:', J .,-'>. . :;.<'.' 't\ >"'. .',.' :," ... .~ , .. ':'~ ~-::<~'~~':::~:f:'~\ Attachment 6-3 r .- , . .. . CITY ()F SPRINGF.IELD . .. ." . 'DEVE~QPME.NT SEI3YICESDEPARTMENT - '., '. .c.,:" '2255th'.~T, ......': . :,~'SPRINGFIELD,'OR97477;'-"..,. , , I ',- _<~;'- ,_~1<_ ,~- ,:.,;',' -'- - ,~ - .".-: '~-....: 0.' >_ , '.... -.,. , --~- :,'.~ Dennis Hunt. 3044 Yolanda Avenue Springfield, OR 97478 """'" ."1 '''~. .-.. ,~~ ~ "' .\ ,",' /';::;"" .; \ , I ~.....:......--' b4u1 '~ AFFIDAVIT OF SERVICE RE CE IVED STATE OF OREGON } }ss. County of Lane . } JAN 2 32008 BY:~~~ I, Brenda Jones, being first duly sworn, do hereby depose and say as follows: 1. I state that I am a Secretary for the Planning Division of the Development Services Department, City of Springfield, Oregon.. 2. I state that in my capacity as Secretary, I prepared and caused to be mailed. copies of Appeal of Marcola Meadows AIS - Attachment 8 and corrected Agenda Item Summary sent to Appellan~(t.p~-o0005);rSee attachment "A") on January 23, 2008 addressed to (see Attachment "B"), by causing said letters to be placed in a U.S. mail box with postage fully prepaid thereon. ffwflPi/ Brenda Jones J) Planning Secretary . STATE OF OREGON, County of Lane --{ /t.I1.ANM) ~ , 2008 Personally appeared the above named Brenda Jones, Secretary, Iwlio acknQyJledged the foregoing instrument to be their voluntary act. Before me: . . OFFICIAL SEAL DEYElTE KELLY NOTARY PUBliC. OREGON COMMISSION NO. 420351 MY COMMISSION EXPIRES AUG. 15, 2011 ~/0jJ;JcI MyCommission Expires: f?,/;!;://I Meetinv nate: MeetinL JIre: Department: Staff Contact: StatTPhone No: Estimated Time: January 28, 2008 Regular Session Development Services Gary M. Karp 6)( - 726-3777cer1r 60. minutes . . AGENDA ITEM SUMMA ny SPRINGFIELD CITY COUNCIL ITEM TITLE: ACTION REQUESTED: ISSUE STATEMENT: ATTACHMENTS: DISCUSSION: APPEAL OF THE PLANNING COMISSION'S APPROVAL OF THE MARCO LA MEADOWS MASTER PLAN APPLICATION. 1) The City Council is requested to address some procedural issues. 2) Then, either a) uphold the December ioth Planning Commission approval of the Marcola Meadows Master Plan application as conditioned, or b) approve the application with modified conditions of approval, or c) if the Council finds it cannot affirm the .Planning Commission's decision, or otherwise approve it with modified .conditions, then denv the application. Seven persons, including the property owner (SC Springfield.LLC) and 6 individuals, have appealed .the December 20th Planning Commission's approval of the Marcola Meadows Master Plan. As . permitted by the Springfield Development Code (SDC), and for ease of review,staff has combined all appeals into one staff report Attachment 1: Staff Report: Appeal of the Planning Commission's Decision Attachment 2: Master Plan Conditions of Approval Attachment 3: Letter to Applicant's Attorney Jim Spickerman from City Attorney Dated January 8, 2008 Attachment 4: Planning Commission Minutes, December 20, 2007 Attachment 5: Draft Planning Commission Minutes, December 11, 2007 Attachment 6: Transportation Graphics . Attachment 7: Oregon Revised "Statutes (ORS) 197.763 Attachment 8: Appeal Submittals - (Seven Statements) On June 18, 2007 the City Council by a vote of 4-2 approved Metro Plan diagram and Zoning Map amendments to allow a mixed use commercial/residential development on the former "Pierce" property on Marcela Road. An approval condition of these applications was the submittal of a Master Plan application to guide the phased development of the property over the . next 7 years. The Master Plan application was submitted on September 28, 2007. The Planning Commission conducted public hearings on this application on November 20, 2007; December 11, 2007; and December 20, 2007. At the conclusion of the December 20th hearing, the Planning Commission voted 7:0 to approve the Master Plan; this action included 53 conditions of approval. On January 4, 2008 seven separate appeals of this decision were submitted to the Development Services Department; six of these appeals are from 6 individuals and one is from the applicant of the Master Plan, SC Springfield LLC. . The attached staff report divides the issues raised in these appeals into the following general categories: 1) procedural challenges; and 2) challenges to findings and conditions of approval. Issues raised by the 6 individuals fall largely into this first category and include notice, participation at hearings, etc., but do not raise objections to any of the 53 conditions of approval. Issues raised by the applicant/appellant include: adequacy of findings demonstrating proportionality, imposition of conditions not justified by the criteria of approval, and delegation of decision-making authority to the City Engineer, but raise no challenges to procedure. Of the numerous issues raised in these appeals the most significant, if upheld by the Council, is Condition #27 which requires the Master Plan to depict an access lane adjoining the residential properties along the south side of Marcela Road and a roundabout at the intersection at Martin Drive and Marcola Road. Attendant to this requirement is the dedication of sufficient land to accommodate the. access lane and roundabout scheduled to occur during the Master Plan's Phase 1 development The construction of the access lane would occur within existing right-of-way, but to maintain the existing cross-section of Marcola Road, the portion of Marcola Road abutting the development site would need to stiift north onto this property. This shift would occur just west of the intersection of 28'h and Marcola and would transition back into the existing alignment just west of the new roundabout at Martin Drive. The staffs recommendation of this condition was supported by the Planning Commission and is based on: 1) the authority granted by the Springfield Development Code to require such improvements; 2) the proposed development is the only reason improvement to Marcola Road is necessary: 3) the applicant offered no reasonably workable solution to the traffic and safety conflicts along Marcola Road created. by the proposed development; 4) access at any point along the development site's frontage with Marcola Road creates traffic safety conflicts with the residential property along the paralleling south frontage of Marcola Road; and 5) the only successful mitigation of the impacts to these nearby properties, whether by using a roundabout or a traditional intersection design, is the inclusion of the access lane. Without all these improvements staff cannot support the Master Plan as submitted by SC Springfield LLC, and the Planning Commission unanimously concurred with this conclusion after evaluating the facts. . . . City of Springfield Development Services Department 225 Fifth Street Springfield, OR 97477 Phone: (541) 726-3759 Fax: (541) 726-3689 SPRINGFIELD Appeals Application, Type IV Appeal, of Planning Commission Decision to City' Council . Name, Journal Number and Date ofth~ Decision Being Appealed .Marcola Meadows Master Plan LRP 2007-00028 Planning Commission Decision Date December 20, 2007 Date of Filing the Appeal January 4, 2007. (This date must be within 15 calendar days of the date ofihe decision.) Please list below, in summary form, the specific issues being raised in the appeal. These should be the specific points where you feel the Approval Authority erred in making the decision, I.e., what approval criterion or criteria youaJlege to have been inappropriately applied. Issue #1 Master Plan Approval Condition #27: 1) is without basis in the applicable criteria for Master Plan approval; Issue #2 2)' ,imposes upon the applicant a burden disproportionate to the impact of the developmenti' and Issue #3 3) unlawfully delegates to the Cit'y E~gineer the discretion to impos..e exactions without reference to standards and without fin~ings of proportionality. Issue #4 \ (List any additional issues being appealed on an attached sheet.) The undersigned acknowledges that the above appeal form and its attachments have been read, the requirements for filing an appeal of a land use decision is understood and states that the infonnation supplied is correct and accurate. Appellant'sName SC Sprinqfield. LLC Phone 775-853-4714 Address 7510 Lonqlev Lane, Suite 102. Reno, Nevada 89511. Statement of[nterest...~ooert~ ./lJ.,mer / aDDlicant Signature. '(}AA/!-v1 /if j/ . ! I I I. ~ for orioinal ano1icatinn I)' Ii",.. Offirp ,r IIIlP On Iv! Journal NO'Xl ,",@Jl-, - C:;~'LReceiv.ed By. . . I H>2.-30 -00 . Assessor's p No. L 7-03 -2,!S -II . Tax Lot No. Date Accepted as Complete ~ 1800 . ?3on PRs200G::.-~3~ ATTACHMENT 8 - 1 WRITIEN APPEAL STATEMENT MARCOLA MASTER PLAN LRP2007-0028 The applicant .appeals Condition #27 of the Planning Commission approval of the. applicant's Master Plan. Reauirements of Master Plan Condition #27 This cOIldition would require a roundabout at the intersection of Marcola Road and Martin Drive and construction of a frontage road on the southern portion of the Marcola Road right-of-way, requiring the. applicant to dedicate the land necessary for all traffic improvements and complete all improvements at the applicant's expense. The . cpndition would also delegate all authority to the City Engineer. to determine the form and timing of future traffic control at the private commercial driveway and Marcola Road intersection. . Summarv of Issues Raised bv Condition #27 . The applicant appeals Condition #27 based upon the following facts and p<?ints of law: 1. The applicant has proposed to dedicate the necessary right-of- way and improve Martin Drive for its entire length and provide signalized intersections at Martin Drive and the private commercial driveway. 2. The City Traffic Engineer acknowledges these improvements will meet applicable performance standards.. . The City proposes a roundabout at Martin Drive and, perhaps, at the private commercial driveway as well. The roundabouts will necessitate a frontage road on the south side of Marcola . Road. Consequences for such requirements are as follows: 3. a. The taking for a public purpose bf between .56 and 2.0 acres of the applicant's commercially zoned property; b. Demolition of 1,200 to 1,700 lirleal feet of a publicly improved arterial street; ATTACHMENT 8 - 2 ;'ffl,ffu@i~~};~,,~0~~~ Cileaves ~wearingm Potter & Scott lLP ~~:Y "~'~~ _-i' 1"1 i'h~~.:" I " ~ /,i' i.:;',\' ) Phone: (541) 6S6.8833 Fax: (541) 345-2034 975 Oak Street . Suite 800 Eugene, Oregon 9740\.3156 Mailing Address, P.O. Box 1147 Eugene, Oregon 97440-1 ]47 Emili): info@gleaveslaw.com Wc=b-Site; www.gleaveslaw.com Frederick A. Batson Jon V. Buerstatte Joshua A. Oark Daniel P. Ellison Michad T. Faulconer"" A.'). Ciustina Thomas P. E. Herrmann. Dan Webb Howard.. Stephen O. Lane WilliamH.Martin. . WalterW.MiIler Laura T. Z. Montgomery. Tanya C. O'Neil Standlee G. Potter Martha J. RodrJ:an Robert S. Russell DouglasR. Schultz Malcolm H. Scott James W. $pickerman Kate A. Thompson JaneM. Yates .Also admitted in,Washington "Also admitted.: in. Califomia , c. Construction of a new arterial street for a distance of approXimately ~ ,200 to 1 ;700 feet generally north of the . existing Marcola Road at the sole expense of the applicant; d. Construction of a frontage road with improvements on the south side of Marcola Road at the applicant's expense (this road will occupy 17 feet of presently unimproved right-of- way which exists now as front yard, setback area and buffer for the residences along the south side of Marcola Road). As discussed below, the requirements sought to be imposed by Condition #27, beyond the practical issues, raise three legal issues: 1. The requirements of the condition are not based on criteria for .approval of a Master Plan as required by Oregon law. 2. The requirements constitute a disproportionate burden upon the applicant relative to the impact of .the development on public facilities. This is contrary to the U.S. Supreme Court ruling in . Dolan v. City of Tie-ard and subsequent Oregon court and Land Use Board of Appeals decisions. . i. The co~dition would also delegate to the City Engineer the authority to determine the form and timing of future traffic -control at the private commercial driveway and Marcola Road. This could include the alternative of a roundabout at that i,htersection. Arl!Ument . Lack of Authoritv for the Reauirement of Roundabouts The applicant has proposed traffic signals at the intersection of Martin Drive and Marcola Road. The infrastructure for this signalization would be put in place at the time of construction of the first phase of the development and. the signals installed as the int~rsection "meets warrants" for traffic signals. . The applicant believes that there is no .authority in the criteria for Master Plan approval to require the roundabout intersections. In addition to the lack of basis for this requirement in the criteria, there is no nexus between the impact of the development and the fmandal burden the requirement places upon the applicant. !tis necessary that there be a connection between a condition. imposed and.the standard served by the condition. This is a case of whether the condition involves an exaction, as does that here, or not. See Olson Memorial Clinic v. Clackamas County, 21 Or LUBA 418 2- WRlTIEN APPEAL STATEMENT - MARCOLA MASTER PLAN LRP 2007-0028 J"-"uary 4, 2008 ' ATTACHMENT 8 - 3 (1991), Sky Dive Oregon v. Clackamas County, 25 Or LUBA 294 (1993). Where private land is sought for'a public purpose, there must be the .essential nexus" between the. condition and the tentative purpose sought to be achieved. See Schultz v. City of Grants Pass, 131 Or App 220,884 P2d 569 (1994) and J.C. Reeves Corn. v. Clackamas County, 131 Or App 614,887 P2d 360 (1994). This site has recently been the subject of a comprehensive plan amendment and zone change wherein cert~ conditions were imposed for approval of a Master Plan for the site. Those conditions constitute a portion of the standards that are applicable and the basis for . imposition of conditions of Master Plan approval. The other applicable standards are the Master Plan approval criteria set forth in SDC 5.13- 125. The zoning map amendment conditions .of approval include condition 9 which requires: .Submittal of preliminary design plans with a Master Plan application addressing proposed mitigation of impacts. discussed inthe TIA." .. SDC Section 5.13-125 sets forth the Master Plan Criteria of Approval. The following isamon.g those criteria: .C. . Proposed on-site and off-site improvements, both . . public arid private, are sufficient to accommodate the proposed phased development and any capacity . requitements of public facilities plans; and provisions are . made to assure construction of off-site improvements in . conjunction with a schedule of the phasing." , In the TIA submitted at the time of rezoning, it was'shown that traffic control would be necessary at the intersections of Marcola . Road/Martin Drive and Marcola Road/private.commercial driveway. In order to meet capacity requirements to satisfy Goal 12 Transportation, the applicant has proposed to dedicate theright-of- way for and to complete all improvements to Martin Drive and provide the signalized intersections contemplated by the TIA. The staff report for the December 11, 2007 Planning Commission meeting states with regard to the proposed signalized intersections: . . .... from a .capacity standpoint existing and proposed transportation facilities would be sufficient to meet applicabkperformance standards...." Staff Report, p.35. . . , 3- WRITTEN APPEAL STATEMENT -MARCOLA MASTER PLAN LRP 2007-0028 January 4, 2008 ATTACHMENT 8 - 4 The staff simply prefers roundabouts at these two intersections on the basis that the City "has had success with roundabout intersection designs in lieu of signalization." Since the applicant's proposed improvements satisfy requirements, there is no nexus between the more onerous alternative and the impact of the development. . In a memorandum of December 18, 2007, Mr. McKenney, Transportation Planning Engineer for the City, attempts to find- authority for the requirement of the roundabout in the language -of SDC 4.2-105.A.1, which speaks to Transportation Infrastructure Standards. The language quoted in Mr. McKenney's memo is out of context and'is inapplicable to the Marcola Road and Martin Drive intersection. The "criteria" cited are set forth under the following. introductory paragraph: "a. The following street connection standard shall be used in evaluating street alignment proposals not shown in or different from an adopted plan or that are different from the ConceptUal Local Street Map.;..~ (Emphasis added.) The standards cited in the December 18, 2007 memorandum simply are not applicable. Both Marcola Road and Martin Drive are shown in the proposed location on both the ConceptUal Local Street Map and TransPlan. -,. Dolan Issue Dolarl v. City of Tie-ard, 512 US 374, 375, 391, 114 S Ct 2309, 2319-2320,2322,129 LEd 2d 304 (1994) and a line of Oregon cases which followed require that a local government show rough proportionality, both in nature and extent, between the burden imposed on the .applicant and the impact of the proposed development. BaSically, a private landowner cannot be required to .bear a greater burden than that which would be proportional to the problem caused by the applicant's development. . . Applied to the present situation, the burden that is proportionate. to the impact caused by the proposed development is. the burden to provide a signalized intersection in order to meet requirements of the Statewide TranSportation Goal and City Code. The . City staff has agreed that, from a capacity standpoint, the proposed signalized intersection would meet applicable performance standards. A disproportionate burden would be imposed by the requirement of roundabouts, which would increase the applicant's burden in the form . , of the cost qf realignment of Marcola Road and the loss of one-half to two acres of commercial land. While the cost of two signalized .J 4c WRITTEN APPEAL STATEMENT c MARCOLA MASTER PLAN LRP 2007-0028 January 4, 2008 ATTACHMENT 8 - 5 intersections could be approximately $500,000, a roundabout with full frontage road would be $2,500,000 plus the. "taking" of two acres of land~ The Planning Commission heard testimony from Brian Barnett, the City's Traffic Engineer, indicating the reasons the City found roundabouts desirable. Among those reasons 'was that: "...the community at large saves...." It was indicated that some communities even use federal funds for roundabouts based upon environmental considerations. The City does think that roundabouts are safer but . does not specifically identify those concerns. Generally, the City staffs comments indicate a preference for roundabouts rather than signalized.intersections for a number of public policy reasons. If there are good policy reasons for roundabouts that are important to broaden the public's objectives, these are costs that must be borne by the public as a whole and not the individual property owner. These are the types of costs that are not proportionate to the impact of the particular development and, if a more onerous alternative is to be chosen, public funds would be required to acquire. the additional right-of-way and for the cost of improvements over and above the cost of signalized intersections. Reauirement of Frontae:e Road Master Plan Condition #27, paragraph 3, would require: "Provide a prelimInary design acceptable to the City Engineer and the Springfield Fire Marshal for a frontage road located.,withinthe existing Marcola Road right-of-way that provides safe and efficient access for vehiCles using residential driveways on the south side of Marcola Road opposite the development site. These improvements as specified by the City Engineer shall be constructed as part of the proposed Phase 1 infrastructure improvements." The Traffic Impact Analysis for the project, accepted by ODOT and the City, found that the development will not "significantly affect" . the transportation system off site, with the exception of the eastbound off ramp of the Eugene-Springfield Highway (which the applicant has agreed to address). The existing situation at the south side of Marcola Road was not identified in the TIA as a location off site where the development would "significantly affect" the transportation system. Marcola Road is classified by the City of Springfield as a minor arterial roadway arid does not currently have .any access control on the south side of the roadway, which has resulted in approximately 14 5- WRITTEN APPEAL STATEMENT - MARCOLA MASTER PLAN LRP 2007-0028 January 4, 2008 ATTACHMENT 8 - 6 ., .." residential driveways on that side of the roadway. This conflict with intersections to Marcola Road was inevitable in terms of future transportation plans. Both the TransPlan and the Conceptual Local Street Plan. call for a collector to be located approximately where Martin Drive is proposed and to intersect at Marcola Road at approximately the same point as shown in. the Master Plan. Someplace, at some time, along this portion of Marcola Road, there was to be a collector street to not only serve the property involved in this application but other properties to the north and east. To the extent there is a problem, it exists with or without the development. The Dolan findings set forth at page 38 of the Staff Report to the Planning Commission do not purport to address the . exaction for. the roundabout, just the right-of-way for the proposed development. The development will be responsible for only a portion of the traffic utiiizing that intersection. Obviously, improvements at the intersection should not be the sole responsibility of the applicant but the applicant has not raised this issue relative to providing a signalized intersection. . The Master Plan as proposed by the applicant would incorporate the existing south-side driveways to the extent possible with the traffic signal proposal. The applicant's traffic engineers do not anticipate an unsafe condition, although some turning movements may be restricted from certain driveways. Unlawful Delel!'ation . Master Plan Condition #27, paragraph 5, would require: "Provide. financial security acceptable to the City Engineer in an amount equal to the cost of signalized traffic control to provide for future traffic control at the arterial/ site driveway intersection location. The form and timing of future traffic control will be based on traffic operational and safety needs as determined by the City Engineer." This condition would give complete discretion to the City Engineer as to whether a roundabout and the necessary right-of-way to accommodate a roundabout would be required at this intersection. . As with the Martin Drive intersection, the traffic data indicates the signalized intersection for the private drive, when put in place as warrants require, will operate as well or better than a roundabout. The condition, as proposed, would not require any particularized analysis of the proportionality of the burden imposed, as required by the Dolan line of cases" The condition is also objectionable in that it 6- WRITTEN APPEAL. STATEMENT - MARCOLA MASTER PLAN LRP 2007-0028 January 4, 2008 ATTACHMENT 8 - 7 constitutes an unlawful delegation of authority by deferring development approval to a later stage where there is no opportUnity Jor public hearing. See Tenlv Prooerties Corn. v. Washimrton Count'{, 34 Or LUBA 352 (1998). l . . The objections above made to the roundabout at the Martin . Drive intersection are made here: there is no logical connection between applicable criteria and the requirement and the burden would be disproportionate to the impact of creation of a driveway. Conclusion The applicant's proposal for signalized int~rsections address traffic capacity and safety requirements. The requirement of . roundabouts .is not only impractical but is an urilawful exaction. The applicant propClses.the attached altemauve for Master Plan . Condition #27. .. G , James W. Spu.:h.c Of Attomeys for Applicant. " Attachment: Proposed Master Plan Condition #27 . r .' . I 7. WRlTIEN APPEAL STATEMENT. MARCOLA MASTER PLAN LRP 2007.0028 Janu",?, 4, 2008 ATTACHMENT 8 - 8 APPLICANT'S PROPOSED MASTER PLAN CONDmON #27 / MASTER PLAN CONomON #27. Prior to the approval of the Final MasterPlan, the applicant" shall: 1) Demonstrate that the improvements specified in the Rnal MasterPlan shall not require any property dedication south of the existing southern Marcola Road right-of-way line.. . 2) Proviqe preliminary design acceptable to the City Engineer for a signalized intersection at the arterial/collector intersection of Marcola Road and Martin Drive, and include the dedication of right-of-way necessary to' .- construct the improvements. The intersection improvements as specified by the City Engineer.shall.be constructed as part of the proposed Phase 1 infrastructure improvements. Rnal design shall be approved during the normal Public Improvement Project (PIP) process associated with proposed Phase 1 infrastructure development. 3) Provide financial security acceptable to the City Engineer in an amount equal to the cost of signalized traffic control to provide for future traffic control at the arterial/site driveway intersection location. The applicant may choose to put in place the necessary infrastructure for signalization at the time of construction of the intersection. At such time as warrants are met, signalized traffic controls shall be put into place at the applicant's expense. i';:- ATTACHMENT 8 - 9 City of Springfield . . DeVelopment Services Department 225 FIflh Street Springfield, OR 974n Phone: (541) 726-3759 Fax: (541) 726-3689 . SPRBNGFIELDo e Received: JAN ~ ~ 2008 .Appeals Application, Type IV . Appeal ofPlamring Commission Decision to City Council . .. .. Or\Qln~t-.l"!.llttal Name, Journal NUIIlber and Date of the D. ecision Being ~ealed ];bV\ t"\CJ. r. z. LR P 2tJOj-0002::? UPLetvJ-b.eP- 20,2001 .J\~ /: Ii pIN re~ bj.~ \~01arL.l 2. ,20D8 (This date must be within 15 ialendar days of the date or the decision.) Please list below, in summary form, the specific issues being raised in the appeal. These should be the specific points where you feel the Approval Authority erred in making the decision, i.e., what approval ::::oOr~~~Oha;:+:J.:at;::e~A~-b~.3 . ho ~n 'Yv\ r((')~-17 -t hcJ}. oz.re.. a.f re~ p)-e.A-r;--\-taXJ Issue.#2 L~C-er n ~h~ (o.r.d ~ Co-<~ W;s-e ftr- ;~ -tR.a...r-e. ip- ('t-i')lu~OMrAcR cA'it +0 U&-P/- Issue~ P,rO ie,.t::7l '^J{) ~ fd ~OS"~', bi/.-t a.dll'ers-f.}r e. -\-Jf p_cK 1M" 6pJ\ reneuvaJL D1.oJ\, .. Issue#4 P05~1 '0'; \'d~_~ 0+' "MD-e.ncl ,(\~ r~~eSS"J1 vvO\..{!d. Dro,r-e-- \nC'lP::.r+Uf)t1~, ~oLft\,.s"" DrolBc: (List any additional issues being. . aled on an attiched sheet) ,- Date of Filing the Appeal i I) ared1 . The undersigned acknowledges that the above appeal form and its atbchments have been read. the requirements for filing IIn appeal of ..land use decision is. understood and states that the int'ormation supplied Is correct and accurate. . . Appellant's Name Dol") V1J!\ Le.ht L. ,none 71....( '1- J 1'( > Address J~L(L) e S-I- Sprincr{'i~M\Or_q(l..f?/ .. . :i::::tof~- ~~c\(M t- JS -~n-;~f~1lt~-f li'QW" nfr'~, ~p TTc", nnlv~ JournatNo. ZoN.20c9-()Cr:X)3 Received By l7-iU.-3o-o0 . 7Z- I esoo AssesSor'sMapNO.J7-o3-;/"i-I/ Tax Lot No. 77_ Z=Vo.-, Date A---r=_J as Complete .::pF\:5 J,-000 - 0003'=' ATTACHMENT 8 - 10 City of Springfield Development Services Department 225 Fifth Street Springfield, OR 97477 Phone: (541) n6-3759 Fax: (541) 726-3689 , .. SPRINqFIE: ) Appeals Application, Type IV Appeal of Planning Commission Decision to City Council Date Received: IftN - 4 '0llL-,. Name, Journal Number and Date. of the Decision Being Appealed. Original Submitt",1 J<I..- I1bw" Ph4A.J7vJ)/C" liT A(l,.Lt*~:, t.RP 2007-0002.lj'. if:Z'5?fY kc.. 2D. 1.007:- ., );I!",r....:-""ar /l1Mt'1JJ-A MlJI-3/XIJ~ . . . ~ - Date of Filing the Appeal 3.4,v -4: 2. 0:sJ f5' (This date must be within15 calendar days ofthe date of the decision.) Please list below, in summary form, the specific issues being raised in the appeal. These should be the specific points where you feel the Approval Authority erred in making the decision, i.e., what approval criterion or criteria you allege to have been inapp.up.:ately applied.. . Issue #1 rVJ I/l~.5.bd lAudv :SDC. S;Z - i, S;' rSR..rL oHuv !"l'ck) ~u~k~V(( ... Issue #2 Issue #3 Issue #4 (List any additional issues being appealed on an attached sheet.) The undersigned acknowledges that the above .appeal form and its. atbchments have been read, the requirements for filing an appeal of:i land use decision is understood and stales that the information supplied is correct and accurate. UN.bI:.7? ~ c;'~Pt#7Q.b OTIZD.fS CI'!""?'tT Appellant's Name ? h \\, P ~. N UUl\Ad '" Phone ~q S- -: lfJ j 7 Address 2i::> 0 Sa rn ( ~ I ilKSvu.<: (,.{ :=\~J:tf\~wfif;t~M~:~Y i7u~v"J 1<''lLDffirp n.p Only- Journal No. 7t1N'J Iln9; -D_DOn,*-- Received By ~30-00 ' l'OoD Assessor's Map No. 17-03-1..'1-/1 . Tax Lo{No. 2.~"D Date Accepted as Complete -:PIt,} 1JY\t.- n(")1'1 ?II.... ..... :;!iL -- ATTACHMENT 8 - 11 . " ~ -.l oU1 {9 f1 (~ (j0tUtV ~. ~ C/-fY' o-f ~v~Jfu/dJ/ : r oould kcJw .sg,,~ ,10 1Lf,~v~ If I wou \eta-+: ~~ ~(fk , . . . . . .11\.Wt W2-S \W IUO.{.t-C-e j?OJ+tC! ON 4W. ~uci(6DL~ 'fO~~ ~VQ(21N7' CPLtYl-e p~ 2Syt5~wc.d \Jv S\)l- 5.1-- )1S'7~ .~ . I ... . . /teUitk- -r1(V&J-u- Pf2.N/A)rUu,:Tvud .::::r~. / r9<J0 J- . ..., . ATTACHMENT 8 - 12 '.'---. 1-4708 To City of Springfield Date Received: JAN - ~ 2008 Original Submittal. 1<.1- 4:ZSpt'loj Re: Appeal fee for "'Villages' .at Marcola Meadows" MasterPlan Type ill application, LRP 2007-00028, decision of 12-20-07 . The city of Springfield has mentioned an appeal fee. The amount of the fee is to be taken from "Development Code Application Fees" blurb. I have copies of the one "Effective 12-3- . 2007." There is nothing on this sheet which directly addresses an appeal from the planning commission. On Wednesday, 1-2-08 a meeting was held to explain and "answer" questions as tQ how much property the City will take and/or destroy and how badly the residents were going to get screwed by the City and the developer. It was reported that the City danced and deflected questions rather than answering them. . At this meeting Gary Karp said the appeal fee was $250. The only $250 fee on the . aforesaid sheet is an "Appeal of Type II Director's DeCision (7) ORS 227.1 75." W~ are not appealing a director's decision but the planning commission so this does .not apply. If it does apply it should be "Appeal of Type ill Decision to City Council" as this removes "Director's" from the fee description and this is a Type ill Decision not Type II. Thusly Newman Trustee. would pay $2,254 as he is appealing no notice. Dennis Hunt is: andther $2,254 for the same issue. Wes Swanger, Clara Shevchinski, and myself is another $6,762 for a total of $11,270. I argue that" this amount is excessive, arbitrary, captious, and unlawfuL I read the statute that .states how the amount .of fee should be determined. I understand that the City may wave the appeal fees and it is petitioned herein for. this to be done. Pursuant to .Oregon Revised Statute if is herein petitioned that the fees be waved as all of the attached appeals are bundled under the North Springfield .Citizens' Committee which has been duly recognize as such by the City. ATTACHMENT 8-13 !4,~ Nick Shevchynski . 11~~ - Nick Shevchynski North Springfield Citizens Committee .,d. '- Date Received: . JAN - 4 2008 1 Assignments of Error Original Submittal ~~ Z.CSp'" 1: The appeals application states that, "T4e Planning Division staff can be of assistance in . helping you filI out this section." Since it doesn't state the staff "will" be of assistance I asked how and/or what assistance? The question was met with silence. 2. ". . . all of the sections on the opposite side of this page must be filed out." There is rio opposite side. 3. Explaining "the specific points that are appealed" in "on~ sentence statement" is undue restriction and an almost impossibility. This application for appeal procedure is unduly restrictive, contradictory, confusing,. and unlawfuL 4. The City seems to .believe in a policy that it doesn't have to abide by the law unless it gets caught and litigated. The City states that if in issue or violation was not raised below it can not be "appealed" to the next level of rubber stamping, Under the plain error rule uripreserved claims of error do not necessarily prevent them form being raised on review. An "error of law apparent on the face of the record" falIs under the planrerror rule.. The Oregon SUp'reme Court issued an opinion on Dec. 13, '07 in State..v Fults overturning the Oregon Appeals Court.because the plain error rule was not applied to unpreserved .claims of error. 5. Karp's memorandum of12-11-07, pg. 10, cites SDC 5.2-115: ". . . the applicant shall post one sign, approved by the Director, on the subject property." Pg. 11: "Staffs Response/Finding" which finds that this was not done. "Wait,".you.will say, "This wasn't preserved." It's an error' of law apparent on the face of the record. Don't you folIow your own lawsi Never mind that question. In any event it was preserved. Page 7, Karp's 12/20/07 memorandum: ". , . and the applicant not contacting the property owners prior to. the public hearing." See attached affidavit. Was this a procedural or statutory requirement? Lawyer Leahy may say procedural in order to ignore the .requirement ~nd I say it's statUtory because it's the law and your law. Golf v McEachr:on. 6. There was a public heari~g on this matter on 12-11-07. Because the record was still open for public comment the public should have been granted the opportUnity for comment. Notice' of this hearing was never timely maiI"ed as required by SDC 5.2-115. 7. The issue of schools being overcrowded Wlll! addressed by a couple of letters from a couple of alleged .officials: It was written that there is and wilI be no "overcrowding" without ever d.efining what that means. . They say there is no overcrowding on one hand and beg for more taxes because of overcrowding on the other: These people should have testified on the record allowing the commission to ask questiorrand the public to hear and see them. It was an . error not to consider that after absorbing the students from the proposed dev"e1opment any additional students from anywhere would cause overcrowding. ATTACHMENT 8 :- 14 '- 2 8. During the 12-20-07 hearing no new material was suppose to. be introduced in order to keep out public co~ment. New material was introduced.. At one point lawyer Spickerman walked up to lawyer Leahy and whispered his objection. Leahy said out loud that there was an: objection because new material was introduced, Commissioner Carpenter added additional new language to the "plan" which the public was not allowed to comment on. Notice of this hearing . being open was not mailed ina timely manner pursuant to SDC 5.2-115. 9. Kinda difficult to preserve an error as stated hereinabove when one is not allowed to speak. The issue of speech is so one-sided it's ludicrous. Rick Satre droned on and on for hours and hours and on and on. Gary Karp droned on for hours. The City's staff droned on for hours and hours. Commissioner Evans droned on. Commissioner Carpenter droned on for hours and on and on. The public got 3 minutes! It's obvious the government doesn:t want to hear from the public, the decisions were already made. The issue is that the city staff and friends control what is. placed on the record by not notifying the public and additionally allowing supporters to have their unrestrictive say. In my opinion this process is just wasting tax money and creating jobs and retirement benefits for staff and lawyers. . . . . 10. Commissioner Nancy Moore was not qualified to vote. She told me .she drove on this part of Marcola Rd. daily t6 her job at a grade school up Marcola. On the last day she said she didn:t kn"ow if there were sidewalks on this part of Marcola. She stated with what appeared to be an attempt at humor that the City. would take 17.ft. from the front of citizens' properties. It's suppose to be on the recorded record. This is shamefuL 1 L The issue of the waterway was never properly addressed. Rather .than have Sunny Washburn and/or her sidekicks Kim and Phil of the city staff answer questions the city staff presented a young man who acted clueless. Or maybe it wasn't an act. When he was asked by a commissioner where the water comes from he answered, "1 don't know~" This is an embillTassment and shamefuL According to the person in the city manager'~ office "they are all engineers. " " 12. Written notice of the decision was not mailed. 13. There were about 56 additions made without equal oppo!1unity for comment on all of them. -14. There was nothing that addresses what will. be done with the bike lanes which are part of the. city's overall plan. Especially since it's planned to have them tom out. 15. There was nothing that addresses what will be done with the bus stops which,are part of the city's overall plan. Especially since it's planned to have them tom out. ATTACHMENT 8 - 15 '- ~ 3 16. There. was/is nothing, not a peep, about the impact on the. environment and/or environmental controls. 17. There was nothing that reasonably described the city's final action and it was not mailed. 18. There was no input and no opportunity to question or comment on what the utility ~ providers' positions are, Utilities are part of the city's overall plan. . 19. The city staff cuts-off public comment and th~ raising of any "new" issues because it's clliimed the staff are not able to open the record for rebuttal. This is false. The record may be opened by statute and otherWise whenever the staff or Joe Leahy feels like it. The staff and Joe . Leahy control everything. . . 20. Gary Karp and Rick Satre argued that th.e number of trips and thusly the traffic will be below the arbitrary alleged unprovided copies of traffic studies with the addition of 512+ homes. and the constant traffic due to one of Americas;2.argest major retailers. Yet Gaiy KarP and staff advocate m.ajor highway expansions to accumulate alleged non-existing rise in traffic. 21. The city alleges it has alligator tears and no money for street repairs yet has more money to tear-up perfectly good sidewalks, curbs, etc. in,order .to please a developer and investors in Reno who want someone else to p.ay for their improvements. 22. Have I said written notices of the hearing and decisions were not mailed nor posted timely pursuant to Oregon Statute? 23. . What. about those fire hydrants? Pursuant to a court order by a federal judge a maintenance report was furnished and half of .the hydrants on Marcola Road were.non- operational. Fire protection is part of the city's overall plan and this was not even mentioned. 24. . This issue of traffic is one of being relative. Is not traffic rated by various levels? Which level is it now and what level will it be? This is part of the city's overall plan and it was never addressed. Nick Shevchynski Nick Shevchynski, North Springfield Citizens' Committee I ATTACHMENT 8- 16 , \ Affidavit. I, Nick Shevchynski, first being duly sworn on oath say: I walked/jogged the perimeter of the former Pierce property which is the proposed "'Villages' at Marcola Meadows" on. almost a daily basis throughout Nov. & Dec. 'of '07 and during the Marcola Meadows Master Elan application case # CRP 2007-00028.. At no time was there a "sign approved by the Director, on the subject property" as required by SDC 5.2-115. (j VU-- Nick Shevchynski .SUBSCRIBED AND SWORN to before me a Notary for the state of Oregon on this 2nd day of January, .2008. . OFFICIAl. SEAL . DUSTIN HAHN \ l NOTARYPUBUC-OREGON '.' COMMISSION NO. 412362 MY Cot4MlU10N EXPIRES NOV. 29.2010 , ~-th Date Received: JAN - 4 2008 OrlglnalSubmittal I<L If: 2Fof1l':\ ATTACHMENT 8 - 17 SPRINGFI" '. ,. '-.. ceived: City of Springfield Development Services Department 225 Fifth Street Springfield, OR 97477 . Phone: (541) 726-3759 Fax: (541) 726-3689 Appeals Application, Type IV Appeal of Planning Commission Decision to CIty Council ~.---~. JAN - 4 2008 ~ Original Subm.itt?\ -,/:Z5i'iYI Name, Journal Number and Date of the Decision Being Appealed. . ffA-S~~ jJ~A1 McJIr MP/.IUfllott/: Lrep l>>c 20. 2co7. 1/,,//0.1/.(" ~ m~ ./If...eadd<V~ , 200-, - Ooe:1':2.?; Date of Filing the Appeal ~ ,l/, '-C)~t' (This date must be within 15 calendar days of the date of ihe decision.) Please list below, in summaryfonn, the specific issues being raised in the appeal. These.shouldbe the specific points where you feel the Approval Authority erred in making the decision, Le., what approval criterion or criteria you allelfe to have been inapp.up.:ately applied. Issue #1 ~ 14- ~jJ ../ fJ4.;{''vJ. itA. tU.A-lvu- ~-t..... J1"..lt,,',. U.....:f';. Wb< <;;:.a-.;...... 4wJ Mc.& &.uJ<-::- /" o...J 6~~ Issue#2 Ir-l~ :J:.. /"'C>>iN1"'''' ~-l.- ~i,. ..,~ ........~ ~btk -. "1- . Issue #3 Issue #4 (List any additional issues being appealed on an attached sheet) The undersigned acknowledges that the above appeal form .and its attachments have been read, the . requiremeuts for filing an appeal of a land Use decision is understood and stateS that the information supplied is correct and accurate. . /..k.J(~..,,'"S~ ct.f;~ Co....~~ APpellant'sNameC~ ~I...st-~ "T~O_ Phone 7+6~).Gc;) Address ;2..}IS" fU~ /Jd. Statement of Interest tJ'r-~ O_~~~f;J..:f- /u./J4d b1 P.....,......J; Signature C. -,IJil~.~.l.-"J : I" . . . li'....... nffiriP TT<lilp Onlv. JournalNo:70Nd.003 - ODOC>~ 11-0:1-30- 0 lJ Assessor's Map No. .l1:"~~ ,1 <;- ,] Date Accepted as Complete. Received By Tax Lot No. 1L I 'if 00 ,;J2,nrl il;L PRJ200G -OO{)3(:, ATTACHMENT 8.-18 ,~ Date Received: .1-4-08 JAN - 4 2lDJ To City of Springfield Original Submittal KL 4:ZSp"'l Re: Appeal fee for "'Villages' at Marcola Meadows"Master Plan Type III application, LRP 2007-00028, decision of 12-20-07 . The city of Springfield has mentioned an appeal fee. The amount of the fee is to be taken from "Development Code Application Fees" blurb. I have copies of the one "Effective 12-3- 2007." There is nothing on this sheet which directly addresses an appeal from the planning commission. On Wednesday, 1-2-08 a meeting was held to explain and "answer" questions as to how much property the .City will take and/or destroy and how badly the residents were going to get screwed by the City and the developer. It was reported that the City danced and deflected questions rather than answering them. At this meeting Gary Karp said the appeal fee was $250. The only $250 fee on the aforesaid sheet is an "Appeal of Type II Director's Decision (7) ORS 227.175." We are not appealing a director's decision but the planning commission so this does not apply. If it does apply it should be "Appeal of Type ill Decision to City Council" as this removes "Director's" from the fee description and this is a Type III Decision not Type II. Thusly Newman Trustee would pay $2,254 as he is appealing no notice. Dennis Hunt is another $2,254 for the same issue. Wes Swanger, Clara Shevchinski, and myself is another $6,762 for a total of $11,270. I argue that this amount is excessive, arbitrary, captious, and unlawfuL. I read the statUte that states how the amount of fee should be determined. I'understand that the City may wave the appeal fees arid it is petitioned herein for this to be done. . Pursuant to Oregon Revised Statute it is herein petitioned that the fees be waved as all of the attached appeals are bundled under the North Springfield Citizens' Committee which has been duly recognize as such by the City. . .) t1,~ Nick Shevchynski 11~~ - . Nick Shevchynski . . North Springfield Citizens Comlnittee ATTACHMENT 8 - 19. City of Springfield DevelopmentServices Department 225 Fifth Street Springfield, OR 97477 . Phone: (541) n6-3759 Fax:.(541) 726-3689 "\ ., , . Appeals Application, Type IV Appeal of Planning Commission Decision toCity Councp JAN - 4 2008 Original Submittal I<i( ",/:Z5piYl Name, Journal Number and Date of the Decision Being Appealed Ii;"S"/1:l2fJuAI . /vPLliL tfpPL/Clfllt:1./: LteP &c. 20, 2vo~ U,//Q.yc:.:t- M~ ~t2~~ . A . h. J-(:;J iJ/' Date of Filing the Appeal ~ Y, 2007 - oo<:>2.&,,' / ~ (I'his datemust be within 15 calendar days of the date of the decision.) Please list below, in summary form, the specific issues being raised in the appeal. These should be the specific points where you feel the Approval AuthoritY erred in making the decision, i.e., what approval criterion or criteria you allege to have been inappropriately applied. . . . Issue #1 ~.P t4. ~() ../ !J4~'t'b.)'/.{' I.J~ ~i..... lk.lr,,'r ~ - "H U . ,. /{v..f: W_ <;;:'~.:,-. /1M.! /f.J,~iA ~(o.:Lt..~:. e>-o.J by Issue#2 rr-l~ 2 /...e="*'o/.,..;;t-....L -fI.u't-. <;~ ~4'/ . ~b:K'- .., Issue #3 Issue .#4 (List any additional issues being appealed on an attached sheet.) The undersigned acknowledges that the above appeal fonn and its attachments have been read, the requirements for filing an appeal of a land use decision is understood and states that the information supplied is correct ~nd accurate. ... ~.,(( ~.."S~ ct.f;J~ Co....__;6e.-.. Appellant'sNameC~ sk.tt::4~Wjt-,; "..4~ Phone 7-M--f'":l.(.c/ Address. ;L},S" U{~ fJd. . Statement of Interest ~4 o-.......f~JM,..:f ,'...~~ b, Pvy)~c:f-.. Signature C......i}{.;.~....luJ.f. , . ];I,,,,p om,.... TTQ"" nnl~. Journal No."ZO tJ d..DO S - 0000 k:, . 11-(};J-3o.0lJ Assessor's Map No. _JJ-ti?~.. >;. LT Date Accepted as Complete Received By TL I f?OD Tax Lot No. ,.;12,"'1") ~ .- PR:r2oob -{)003~ ATTACHMENT 8. - 20 " Date Received: 1-4-08 JAN - ~ 2008 To City of Springfield Original Submittal. l<.L- 4:ZSp"l Re: Appeal fee for "'Villages' at Marcola Meadows" Master Plan Type III application, . LRP 2007-00028, decision of 12-20-07 . The city of Springfield has mentioned an appeal fee. The amount of the fee is to be taken from "Development Code Application Fees" blurb. I have copies of the one "Effective 12-3- 2007." There .is nothing on this sheet which directly addresses all appeal from the planning commission.- On Wednesday, 1-2-08 a meeting was held to explain and "answer" questions as to how much property the City will take and/or destroy and how badly the residents were going to get screwed by the City and the developer. It was reported that the City danced and deflected. questions rather than answering them. At this meeting Gary Karp said the appeal fee was $250. The only $250 fee on the aforesaid sheet is an "Appeal of Type II Director's .Decision (7) ORS 227.175." We are not appealing a director's decision but the planning commission so this does not apply. . If it does apply it should be "Appeal of Type III Decision to City Council" as this removes "Director's" from the fee description aiId this is a Type .III Decision not Type II. Thusly Newman Trustee would pay $2,254 as he is appealing no notice. Dennis Hunt is. another $2,254 for the same issue. WesSwanger, Clara Shevchinski, and myself is another $6,762 for a total of $11,270. . I argue that this amount is excessive, arbitrary, captious, and unlawful. I read. the statute that .states how the amount '-of fee should be determined. I understand that the City may wave the appeal fees and it is petitioned herein for this to . be done.. . .. Pursuant to Oregon Revised Statute it is, herein petitioned that the fees be waved as all of the attached appeals are bundled under the North Springfield Citizens' Committee which has been duly recognize as such by the City. 14,~ Nick Shevchynski I1j~ - c Nick Shevchynski . North Springfield Citizens Committee ATTACHMENT 8 - 21 Date Received: JAN -, 2008 1 Assignments of Error , Original Submjtt..1 KL 4:L~p"" L J The appeals. application states .that, "The Planning Division staff can be of assistance i~ helping you fill out this section." Since it doesn't state the staff "will" be of assistance I asked how and/or what assistance? The question was met with sile~ce. 2. ". . . all of the sections on the opposite side of this page must be filed out" There is no opposite side. . 3. Explaining. "the specific points that are appealed" in "one sentence statement" is undue restriction and an almost impossibility. This application for appeal procedure is unduly restrictive, contradictory, confusing, and unlawful. . 4. The City seems to believe in a policy that it doesn't have to abide by thelaw unless it gets caught and litigated. The City states that if an issue or violation was not raised below it can not be "appealed" to the next level of rubber stamping. Under the plain error rule unpreserved claims of error.do not necessarily prevent them form being raised on revi~w.. An "error.of law apparent on the face of the record" falls Under the plancerror rule.. The Oregon Supreme Court issued an opinion. on Dec. 13, '07 in State v Fults overturning the Oregon Appeals Court because th.e plain error rule was not applied to unpreserved claims of error. . 5.' Karp's memorandum of12-11-07, pg. -10, cites SDC 5.2-115: ". . . the applicant shall post one sign, approved by the Director, on the subject property." Pg. 11: "Staffs Response/Finding" which finds that this was nordone. "Wait," you will say, "This wasn't preserved." It's an error of law appar~nt on the face of the record. Don't you follow your own laws? Neyer mind that question. . In any event it was preserved. Page 7, Karp's 12/20/07 memorilndum: ". . . and the. applicant not contacting the property owners prior to the public hearing." See attached affidavit Was this a procedural or statutory requirement? Lawyer Leahy may say procedural in order to ignore the requirement and I say it's statutory because it's the law and your law. Golf v McEachron. 6. There was a publiC hearing on this .matter on 12-11-07. Because the record was still open for public comment tl1e public should have been granted the opportunity for comment Notice of this hearing was never timely mailed as required by SDC 5.2-115. 7. The issue of schools being overcrowded was addressed by a couple of letters from a couple of alleged officials. It was written that there is and will be no "overcrowding" without ever defining what that me~s.. They say there is no overcrowding on. one hand and beg for more taxes because of overcrowding on the other.. These people should have testified on .the record allowing the commission to ask questiolX"and the public to hear and. see them. It was an error not to consider that after absorbing the students from the proposed development any additional students from anywhere would cause overcrowding. ATTACHMENT 8 - 22 2 8. During the 12-20-07 hearing no new material was suppose to be introduced in order to keep out public comment. New material was .introduced. At one point lawyer Spickerman walked up to lawyer Leahy and whispered his objection. Leahy said out loud that there was an objection because new material was introduced. Commissio!ler Carpenter add~d additional new language to the "plan" which the public was not allowed to' comment on. Notice of this hearing being open was not mailed in a timely manner pursuant to SDC S.2-11S: 9. Kinda difficult to preserve an error.as stated hereinabove when one is not allowed to speak. The issue of speech is so one-sided it's ludicrous, Rick Satre droned on and on for hours < and hours and on and on. Gary Karp droned on for hours. The City's staff droned on for ho~rs and hours. Commissioner Evans droned on. Commissioner .Carpenter droned on for hours and on and on. The public got 3 minutes! It's obvious the government doesn't want to hear from the public, the decisions were already made. The issue is that the city staff and friends control what is placed on the record by not notifying the public and additionally allowing supporters to have their unrestrictive say. In my opinion this process.is just wasting tax money and creating jobs and retirement benefits for staff and .lawyers. . 10. .Commissioner Nancy Moore was not qualified to vote. She told me she drove on this part . of Marcola Rd. daily to her job at.a grade school up Marcola.. On the last day she said she didn't. know if there were sidewalks on this part of Marcola. She stated with what appeared to be an attempt at humor that the City would take 17 ft. from the front of citizens' properties. It's suppose to be on the recorded. record. This is shameful. 1 L The issue of the waterway was never properly addressed. Rather than have Sunny Washburn and/or her sidekicks Kim and Phil of the city staff answer questions the city staff presented a y.oung man who acted clueless. Or maybe it wasn't an act When he was asked by a commissioner where the water comes from he answered, "I don't know." This is an embarrassment and shameful. According to the person in the city manager's office "they are all engineers. " 12. Written notice of the decision was not mailed. 13. There were about 56 additions made without equal opportunity for comment on all of them. . . 14. - There was nothing that addresses what will be done with the bike lanes which are.part of the city's overall plan. Especially since it's planned to have them tom out. 15. There was nothing that addresses what will be done With the bus stops which are part of the city's overall plan. Especially since it's planned to have them tom out. ATTACHMENT 8 .,.. 23 ,,: -. 3 16. There was/is nothing, not a peep, about the impact .on the environment and/or environmental controls. 17. There was nothin.g that reasonably..described the city's final action and it was not mailed. 18. There was no input and no opportunity to question or comment on what the utility providers' positions are.. Utilities are part of the city's overall plan. 19. The city staff cuts-off public comment and. the raising of any "new" issues because it's claimed the staff are not able to open the record for rebuttal. This is false. The record may be opened by statute and otherwise whenever the staff or Joe Leahy feels like it. The staff and Joe Leahy control everything. 20. Gary Karp and Rick Satre argued that the number of trips and thusly the traffic Will be below the arbitrary alleged unprovided copies of traffic studies with the addition of 512+ homes and the constant traffic due to one of AmericasJ.argest major retailers. Yet Gary Karp and staff .advocate major highway expansions to accumulate alleged non-existing rise in traffic. 21 The city alleges ithas alligator tears and no money.for street repairs yet has more money to tear-up perfectly good sidewalks; curbs, etc. in order to ple!l5e a developer and investors in Reno who want someone else to pay for their improvements. 22. Have I said written notices of the hearing and decisions were not mailed nor posted timely pursuant to Oregon Statute? 23. . What. about those fire hydrants? Pursuant to a court order by \l federal judge a maintenance report was furnished and half of the hydrants on Marcola Road were non- operationaL Fire protection is part of the city's overall plan and this was not even mentioned. 24. This issue of traffic is one of being relative. Is not traffic rated by various levels? Which level is it now and what level will it be? This is part of the city's overall plan and it was never addressed. . Nick Shevchynski Nick Shevchynski, North Springfield Citizens' Committee ATTACHMENT 8 - 24 I' Affidavit I, Nick Shevchynski, first being duly sworn on oath say: I walked/jogged the perimeter of the former Pierce property .which is the proposed "'Villages' at Marcola Meadows" on almost a. daily basis throughout Nov. ~ Dec. of '07 and during the Marcola Meadows Master Plan application case # CRP 2007-00028. At no time .was there a "sign approved by the Director, on the subject property" as rec:ruired by SDC 5.2-115. /ll~ Nick Shevchynski SUBSCRIBED AND SWORN to before me a Notary for the State of Oregon on this 2nd day of January, 2008. I'. NOT~~~!EGON ..1 \. COMMISSION 00412362 . I MV OMIlISStON EXPIRES NOV. 29. 2010 , ~~~ - r Date Received: JAN - 4 m Original SuLmil~I...1.~ _ If- ~ 2.'J ' ATTACHMENT 8 - 25 City of Springfield Development Services Department 225 Fifth Street Springfield, OR 97477 Phone: (541) 726-3759 Fax: (541) 726-3689 Appeals Application, Type IV Appeal of Planning Commission Decision to City Council JAN - 4 2OQ8 '/1 OriglnaltiUDmll1r ' 'f; Z<:Jf""- Name, Journal Number and. Date of the Decision Being Appealed mas<;(e-v- ?~<[il p~T1I ~rl(~A'f'D,,^ U(Pdt67-n.r<Y\J{?5 0",,, . ~O _1 ()(\'1 \.). \ \ &M3 \L-l-rY\&H'~~"" IY1 PotJIlvtE' J l Dale of Filing the Appeal J (Ihis date must be within 15 calendar days of the date of the decision.) Please list below, in summary form, the specific issues being raised in the appeal. These should be the . specific points where you feel the Approval Authority erred in making'the decision, i.e., what approval criterion or criteria you allege to have been inay,"_r.:ately applied. ',' ~ Issue #11h.o ,. r-O'V()S",_Ltv\o.v-~oL1 'lS1 ~ \' ",J<'.-W\ ",.....<1 ;>rc;:,-<-[f" '_J.),l ( T~l",. O-vu ,-e~c"'- --:~- ,:"~_,~~,,:LL\~l.,1:1--' fVl"'\""'!." ,F?d~ . u .. Issue#2 HL,\~_e-<<.q. \'" ~.()..""">,\" 1<.4 \ ~<J- -O>~ ~ ....L-rL""r-.. 1.)(>. _ . b eo. '0 e........ "'p.o,ifr"_,,,,.\.. ,_,.,.....,."" f(" 1 \..'1 f l.. ~'''r,,<;,J mr\~'\\0. p,l ",^",~.$\0..o...\ee:r . 17', \ .'rr ,,' \-- \. r.-r ",,,,.. l Issue #3 \.h.Q. """,t.,-\" (,.,,'\.dy'^-' ~.r-(\('P,<: "'....t ","p, ," \C\"''''' q. , '\'(\~r\\~\:<' r;p"'J"jl"i' l,.j,,-~ 'r>..'({ d(\Y'L~_ n.<,c"...-L",-\~'"C~.'\,-,-,\Q..3. Issue #4 . (List any additional issues being appealed on an attacned sheet.) The undersigned acknowledges that the. above appeal form and its attachments have been read, the requirements for filing ail appeal of a land use decision. is understood and states that the. information supplied is correct and a.ccurate. .., APpellant'sNameLJ~~ 0. SlA'<L~~'-f" , Pho~/S'li) 71/j,R5'f3~ AddressM.r <' (",fP,)aJ. S.ffJ~ ~,P-1.J: LJt"1"1"""- 97</'Z;f. .. Statement of Interest Pr"p~.1""S-\ Oul~. O-..~"",,~J 'hu ~t\l~~O""" Signature IJ JUJ! '.&f_fJ .1.~1'A . I ~ mJor p~ WnW" Of'fiPiP TTlIil~l~. Journal No. Zo1\l2c:t> ~- Qa:JO 7 Received By , 17-02-~D.OO 1800 Assessor's Map No. 17-0-:>;--7'::'- j' .TaX Lot No. .2.:>'nl) Date Accepted as Complete. ~ .- VRSz.ax,-COO3k, ATTACHMENT 8 - 26 ~ Appeals Application, Type IV Appeal of Planning Commission Decision to City Council . City of Springfield . Development Services Department 225 Fifth Street Springfield, OR 97477 Phone: (541) 726-3759 Fax: (541) 726-3689. SPRINGFII Name, Journal Number and Date of the Decision Being Appealed. Original Submitt"'1 . f1A5"h:-n /l.;w /'rl>~ til ApI'Jla:TltM./ l' LRP '20Cf7..,.0002Y-: ~. J~ :1."""'7 . 1'1/.//'V...e/ a:;t- ;,U1i'C~1A 11A40fDUJ<:.. ." JAN - ~2008 KL "h l'Sfr>) . Date of Filing the Appeal ""'>/f,oV V;, ').~o 7 (Ihis date must be within 15, calendar days of the date of the decision.) Please list below, in sumri:J.ary form, the specific issues being raised in the appeal. These should be the specific points where you feel the Approval Authority erred in making the decision, i.e., what approval criterion or criteria you allege to have been in~t't'.~t'.:ate]yapplied. . Issue #1 5e.P A-7t/k.H,A-(~<, I 1l1'F1()kvl,.. -~<7N~ .o'f> f'lU2.o(? /' I Issue #2 . I I I / I t' Issue #3 Issue #4 (List any additional issues being appealed on an attached sheet.) The undersigneiJ acknowledges that the .above appeal form and its attachments have been read, the requirements for filing an appeal of a land use decision is understood and states that the information supplied is correct and accurate.. . ~ ~ <;'f'dlLlfR4t> CI71if.l:P-S CO. ......,~ . Appellant'sName ,{),Ck StevrHIJ.I<;Kt:. . Phone "OIL-€- Address ~?>4 j 11/{lu.otA fu4.h Statement of Interest AbTof('J;:/.J1'1iP"PDtlY ()Wfll Signature IA(fA_...... __ . Wnr Offit"P TTqp On'v~ JoumalNo. Zo1J:ZQ)~-OOCv8 . 17-02. -.30 '00 Assessor's Map No. l7-fl"l-2';- fl Date Accepted as Complete Received By Tax Lot No. /t?OO 2.'z,D1) .." =- .- 11-<..! ,---o~'CfX)3b ATTACHMENT 8 - 27 ., Date Received: 1-4-08 JAN - UlDl To City of Springfield Original Submittal KL 4:ZSpl'1-1 Re: Appeal fee for '''Villages' at Marcola Meadows" Master Plan Type III application, LRP 2007-00028, decision of 12-~0-07 The city of Springfield has mentioned an appeal fee. The amount of the fee is to be taken .. from "Development Code Application Fees" blurb. I have copies of the one "Effective 12-3- 2007." There is nothing on this sheet which directly addresses an appeal from the planning commission. On Wednesday, 1-2-08 a meeting was held to explain and "answer" questions as to how much property the City. will take and/or destroy and how badly the residents were going to get screwed by the City and the developer It was reported that the City danced and deflected questions rather than answering them. --, At this meeting Gary Karp said the appeal fee. was $250. The only $250 fee on the aforesaid sheet is an "Appeal of Type II Director's Decision (7) ORS 227.175." We are not appealing a director's decision but the planning commission so this does not apply. If it does apply it should be "Appeal of Type III Decision to City Council" as this removes "Director's" from the fee description and this is a Type III Decision not Type II. Thusly Newman Trustee would pay $2,254 as he is appealing no notice. Dennis Hunt is another $2,254 for the same issue. Wes Swanger, Clara Shevchinski, and myself is another $6,762 for a total of $11,270. I argue that this amount is excessive, arbitrary, captious, and unlawfuL I read the statute that states how the amount of fee should be determined. I understand that the City may wave. the appeal fees and it is petitioned herein for this to be done. ' Pursuant to Oregon Revised Statute it is herein petitioned that the fees be waved as all of the attached appeals are bundled under, the North Springfield Citizens' Committee which has been duly recognize as such by the City. . '!4,~ Nick Shevchynski ~ 11~~ Nick Shevchynski North Springfield Citizens Committee ATTACHMENT 8 - 28 .. Date Received: JAN - 42008 1 Assignments of Error Original Submittal .KL- 4 : 2.'6p ..., 1. The appeals application states that, "The Planning Division staff can be of assistance in helping you fill out this section." Since it doesn't state. the staff "will" be of assistance I asked how and/or what assistance? Th~ question was met with silence. 2: ". . . all of the .sections on the opposite side of this page must be filed out" There is no opposite side. 3. Explaining "the specific points that are appealed" in "one sentence statement" is undue restriction and an almost impossibility. This application for appeal procedure is unduly restrictive,contradictory, confusing, and unlawfuL . .4. The City seems to believe in a policy that it doesn't have to abide by the law unless it gets caught and litigated. The City states that if an issue or violation was not raised below it can ~ not be "appealed" to the next level of rubber stamping. Under the plain error rule unpreserved claims of.error do not necessarily prevent them form being raised on review. An "error of law .apparent on the face of the record" falls under the plant error rule. The Oregon Supreme Court issued an opinion on Dec. 13, '07 in State v Fults overturning the Oregon Appeals Court because the plain error rule was not applied to unpreserved claims of error. ' 5. Karp's memorandum of 12-11-07, pg. 10, cites SDC 5.2-115: ". : . the applicant shall post one sign, approved by the Director, on the subject property." Pg. 11: "Staffs Response/Finding" which finds that this was not done. "Wait," you will say, "This wasn't preserved." It's an error of law apparent on the face of the record, Don't you follow your o'wn laws? Never mind that question. In any event it was preserved. Page 7, Karp's 12/20/07 memorandum: ", . . and the applicant not ,contacting the p.roperty owners prior to. the public hearing." See attached affidavit Was this a procedural or statutory requirement? Lawyer Leahy may say procedural in order to ignore the requirement and I say it's .statutory because it's the .law and your law. Golf v McEachron. 6. There was a public hearing on this matter on 12-11-07. Because the record was still open .for public comment the public should have been granted the opportunity for comment Notice. of this hearing was never timely mailed as required by SDC 5.2-115. 7. The issue of schools being overcrowded was addressed by a couple of letters from a couple of alleged officials. It was written that there is and will be no "overcrowding" without ever defining what that means. They say there is rio overcrowding on one hand and beg for more taxes because of overcrowding on the other. These people should have testified on the record allowing the commission to ask questiolQalld the public to hear and see them. It was an error not to consider that after absorbing the students from the p.roposed development any additional students from anywhere would .cause overcrowding. ATTACHMENT 8 - 29 2 8. During the 12-20-07 hearing no new material was suppose to be introduced in order to keep out public comment. New material was introduced. At one point fawyer Spickerman walked up to lawyer Leahy and whispered his objection. Leahy said out loud that there was an objection because new material was introduced. Commissioner Carpenter added additional new language to the "plan" which the public was not allowed to comment on.. Notice of this hearing being open was not mailed in a timely manner pursuant to SDC 5.2-115. 9. Kinda difficult to preserve an. error as stated hereinabove when 0I1e is not allowed to speak. The issue of speech is soone"sided it's ludicrous. Rick Satre droned on and on for hours and hours and on and on. Gary Karp droned on for hours. The City's staff droned on for hours and hours. Commissioner Evans droned on. Commissioner Carpenter droned on for hours and on and on. . The public got 3 minutes! It's obvious the government doesn't want to hear from the public, the decisions were already made. The issue is that the city staff and friends control what is placed on the record by not notifying the public and additionally allowing supporters to . have their unrestri.ctive say. In my opinion this process is justwastirtg tax money and creating jobs and retirement benefits for staff and lawyers. 10. Commissioner Nancy Moore was not qualified to vote. She told me she drove on this part of Marcola Rd. daily to her job at a grade school up Marcola. On the last day she said she didn't know if there were sidewalks on this part of Marcola. She stated. with what appeared to be an attempt at humor that the City. would take .17 ft. from the front of citizens' properties. It's . suppose to be on the recorded record. This is shamefuL 1 L The issue of the waterway was never properly addressed. Rather than. have Sunny Washburn and/or her sidekicks Kim and Phil of the city staff answer questions the city staff presented a young m.an who acted clueless. Or maybe it wasn't an act. When he was asked by a commissioner where the water comes from he answered, "1 don't know." This is an embarrassment and shamefuL Accordingto the person in the city manager's office "they are all engineers. " 12. Written notice of th.e decision was not mailed. 13. There were about 56 additions -made without equal opportunity for comment on all of them. . 14: There was nothing that addresses what will be done with the bike lanes which .are part of the city's overall plan. Especially since it's planned to have them torn out 15. There was nothing that addresses What will be done with the bus stops which are part of the city's overall plan... Especially since it's planned to have them torn out ATTACHMENT 8 - 30 3 16. There was/is nothing, not a peep,. about the impact on the environment and/or environmental controlS. .17. There was nothing that reasonably described the city's final action and it was not mailed. 18. There was no {nput and no opportunity to question. or comment on what the utility providers' positions are. Utilities are part of the city's overall plan. 19. The city starf cuts-off public comment and the raising of any "new" issues because it's claimed the staff are not able to open the record for rebuttal. . This is false. The record may be opened by statute and otherwise whenever the staff or Joe Leahy feels like it The staff and Joe Leahy control everything. 20.. Gary Karp and Rick Satre argued that the number of trips and thusly the traffic will be below the arbitrary alleged unprovided copies of traffic studies with the addition of 512+ homes and the constant traffic due to omi of Americas.largest major retailers. Yet Gary Karp and staff advocate major highway expansions. to accumulate alleged non-existing rise in traffic. 21 . The city alleges it has alligator tears and no money for street repairs yet has more money to tear-up perfectly good sidewalks, curbs, etc. in order to please a developer and investors in Reno .who want someone else to pay for their improvements. 22. Have I said written notices of the hearing and decisions were not mailed nor posted timely pursuant to Oregon Statute? 23. What about those fire hydrants? Pursuant. to a court order by a fede~al judge a maintenance report was furnished and half of the hydrants on Marcola Road were non- operational. Fire protection is part of the city's overall plan .and this was not even mentioned. 24. This issue of traffic is one of being relative. Is not traffic rated by various levels? Which level is it now and what level will it be? This is part of the city's overall plan and it was never addressed. !fick Shevchynski Nick Shevchynski, !forth Springfield Citizens' Committee ATTACHMENT 8 - 31 Affidavit . I, Nick Shevchynski, first being duly sworn on oath say: I walked/j?gged the perimeter of the former Pierce property which is the prop.osed "'Villages' at Marcola Meadows" on almost a daily basis throughout Nov. & Dec. of '07 and during the Marcola Meadows Master Pl.an application case # CRP 2007-00028. At no time was .there a "sign. approved by the Director, on the sUbject. property" as required by SDC-5.2-115. ) a~ .Nick Shevchynski SUBSCRIBED AND SWORN to before me a Notary fOr the State of Oregon on this 2nd day of January, 2.008. (I OFRClALSEAL . DUS'T1N HAHN '" .... NOTARY PUBUC - OREGO!.; . COMMISSION 00412362 I MY COMMISSION EXPIRES NOV. 29,20HII ~~/ \ ~ Date Received:_ JAN - 4 2008 Original Submittal )(L: Jf:Z5pfY\ . ATTACHMENT 8 - 32 ( City .of Springfield Development Services Department 225 Fifth Street . Springfield, OR 97477 Phone: (541) 726-3759 Fax: (541) 726-3689 SPRINGFI' _~ . Appeals Application, Type IV Appeal of Planning Commissioo Decision to City Council .,. Original SubmitV>1 Name, Journal Number and Date of the DecisIOn Bemg Appealed . MIsTm. fLw WPG llL!4P"e-{CAnCN;' L-~P20d7-()f)Oj.F: hs:c _ 2-0. ~Oo? , I " tJil.<- A,~ 4-1" HAietr.OLA N -.47'>0.0, '/ JAN - 4 2008 K~ 4:'6p"" ,. . Date of Filing the Appeal ~ ~ 2-D<l t (This date oiust be within 15 calendar days of the date of the decision.) . , , Please list below, in summary form, the specific issues being raised in the appeaL These should be the specific points where you feel the Approval Authority erred in making the decision, i.e., what '"1'1"v .aI criterion or criteria you allelfe to have been. inappropriately applied. , Issue #1 No NDTl t::..-'<..J fOS~1"~OO F YhE.E....' '" €I as 7'e.~ L:I11'o_d bJ S :Dc.. 5, ~ -I IS- Q/ Issue #2 5&QJ:..1i"..J a~~....,,'f-- ST'A:t"'FAb'vr OJ.J iMCiC Issue #3 Issue #4 (List any additional issues being appealed on an attached sheet.) The undersigned acknowledges that the above appeal form a!ld its attachments have been read, the requirements for filing an appeal of a land use decision. is nnderstood and states that the information supplied is correct aDd accurate. It..N,.. pOInt{ C;;P"'~4l> Cn~.u.s e.......:,~ Appel1ant'sNameJ>-enn,~ H-u...,,+-. Phone S'-C; 1-7 If t.~ S"'Sl?D Address 3oVl' YOL.A/V ~A A~<;f.JZ.J',,;11f'/~ LJ . StatementofIn,teresr"() tiz, k4..n.G r'~,-,"1-h 6Q'-'''''&'d~ Pifl-vOJ2.Ji'~j (()V->Ae-.e.., Signatt..~o 45f'~'''''J+',...ld f'oIUJ7e.rzl:; "'.....~ ' ~ /l~lA~~ , - , li'n... Offi,..,. TTlIilflo nuJ~. Journal No. Zo tJ 2(X)~ -ryYln5 . , . 1'7-02'00-00 As~essor s Map No. _11::/' 2; J c;.- I I Date Accepted as Complete Received By 1L l800 Tax Lot Nor ?:>;oo ~ .- P~2-C00'OCP3h ATTACHMENT 8 - 33 ). Thtz.... f]aYl ~'''''j (p#1,....,'~_rt.o!J'" de/\:eJ2 ~ ~ .... of flo/L ~"._:~f'J -10 f.o p!Tl uf',...7~ b J ~ "':t ~ 110"- 'J J _ .. . .... . . ) <2 5 /Z- e (J ...... I (2.1 f'.q f c> S.<:/' I ----'<:j C -P- /1$0'1) <..~ 1 ~I.yt,... (9.......,..a."\. F'-""-"'" D ..J . ^. I. n ... r . . .\" N S'VC s: 2.. - 11 S'. . c r yt~a. rc...1 ""-3 l' . .:r:. ),'ve- '" ~ =-- J~ I ~ r'QSA.. d J e.v-'<-lc~~ t- <l ~ J J.1Z-~..c2- O~~ S" h.e.e:J-s,,{}"I:.-c-/""J( ~) f~ te<-:s,';':;::' Je/. 'j'^ f oS MP ;\J01-; (€- c...., 0 <-"-I J. h"",__ ~ U~....,eQ ~ tv rc..n. -he.. ;f<vT",,-= d....... [) J2.~r.n-e. ss . ----y c.D~ce/l.~ 5 . ..~. ": , n ; \. :. , . ~ . - ~-, . . .' ATTACHMENT..S - 34 . Date Received: 1-4-08 JAN - ~ 2008 , Original Submittal KL- 4: ZSp"l To City of Springfield Re: Appeal fee for '''Villages' at Marcola Meadows" Master Plan Type III application, . LRP 2007-00028, decision of 12-20-07 .\ The city of Springfield has mentioned an appeal fee. The amount of the fee is to be taken from "Development Code Application Fees" blurb. I hav~ copies of the. one "Effective 12-3- 2007." There is nothing on this sheet. which directly addresses an appeal from the planning commission. On Wednesday, 1-2-08 a meeting was held to explain and "ans~er" questions as to how much property the City will take. and/or destroy and how badly the residents were going to get screwed by the City and the developer. It.was reported that the City danced and deflected questions rather than answering them. . At this meeting Gary Karp said the appeal fee was $250. . The only $250 fee on the aforesaid sheet is an "Appeal of Type IT Director's Decision (7) ORS 227.175." We are not appealing a director's decision but the planning commission so this does not apply. Ifit does apply it should be "Appeal of Type III Decision to City Council" as this removes "Director's" from the fee description and this is a Type III Decision not Type IT. Thusly Ne~an Trustee would pay $2,254 as he is appealing no notice. Dennis Hunt is. another $2,254 for the same issue.. Wes Swanger, Clara Shevchinski, and myself is another $6,762 for a total of $Il,270. I argue that this amount is excessive, arbitrary, captious, and unlawfuL I read the statute that .states how the amount of .fee should be determined. I understand that the City may wave the appeal fees and it is petitioned herein for this to be done. ' . . . Pursuant to Oregon Revised Statute it is herein petitioned that the fees be w.aved as all of the attached appeals are bundled under the North Springfield Citizens' Committee. which has been duly recognize as such by the City. !4,~ Nick.Shevchynski U~~ Nick Shevchynski North Springfield Citizens Committee ;- ATTACHMENT 8' - 35 Date Received: JAN - 4 2008 ~ssigninents of Error 1 Original Submittal ~ :" Z!6p ,., L The appeals application states that, "The Planning Division stinf can be of assistance in helping you fill out this section." Since it doesn't state the staff "will" be of assistance I asked how and/o~ what assistance? The question was met with silence. 2. ". ... all of the sections on the opposite side of this page must be filed out" There is no opposite side. 3. Explaining "the specific points that are appealed" in "one sentence statement" is undue restriction and an almost. impossibility. This application for appeal procedure is. unduly restrictive, contradictory, confusing, and unlawfuL 4. . The City seems to believe in a policy that it doesn't have to' abide by the law unless it gets caught and. litigated. The City states that if an issue or violation was not raised below it can not be "appealed" to the next level of rubber stamping. Under the plain error rule unpreserved claims of error do not necessarily prevent them form being raised on review. An "error of law apparent on the face of the record" falls under the plancerror rule. The Oregon. Supreme Court issued an opinion on Dec. 13, '07 in State v Fults overturning the Oregon Appeals Court because the plain error rule was not applied to unpreserved claims of error. ' 5. Karp's memorandum on2-11-07, pg. 10, cites SDC 5.2-115: ". . . the applicant shall post one sign, approved by the Director, on the subject property." Pg. 11: "Staffs Response/Finding" which finds that this was not done. "Wait," you will say, "This wasn't preserved." It's an error of law apparent on the face of the record: Don't you follow your oWn laws? Never mind that question. In any event it was preserved. Page 7, Karp's 12/20/07 memorandum: ". .., and the applicant not contacting the property owners prior to the publi~ hearing." See attached affidavit Was this a procedural or statutory requirement? Lawyer Leahy may say procedural in order to ignore the requirement and I say it's statutory because it's the law and your law. Golf v McEachron. 6. There was a public hearing on this matter on 12-1"1-07.. Be~ause the record Was still opim . for public comment the public should have been granted the opportunity for comment Notice of this hearing was never timely mailed as required by SDC. 5.2-115. . 7. The issue of schools being overcrowded was addressed by a couple of letters from a coup~e of alleged officials. It was written that there is and will be no "overcrowding" without ever defining what that means. .' They say there is no overcrowding on one hand and beg for more taxes because of overcrowding on the other. These people should have testified on the record allowing the commission to ask questionrand the public to hear and see them. It was an error not to consider that after absorbing the students from the proposed development any additional students from anywhere would cause overcrowding. . . ATTACHMENT 8 ..; 36 2 8. During the 12-20-07 hearing no new material was suppose to be introduced in order to keep out public comment New material was introduced. At one point lawyer Spickerman walked up to lawyer Leahy and whispered his obj ection. Leahy sald out loud that there was an obj ection because new ~aterial was introduced. Commissioner Carpenter added additional new language to the "plan" which the public was not allowed to comment on. Notice of this hearing being open was not mailed in a timely manner pursuant to SDC 52-lIS. 9. Kinda difficult to preserve an error as stated hereinabove when one is not allowed to . speak The issue of speech is so one-sided it's ludicrous. Rick Satre droned on and on for hours and hours and on and on. Gary Karp droned on for hours. The City's staff droned on for hours and hours. Commissioner Evans droned on. Commissioner Carpenter droned on for hours and on and on. The public got 3 minutes! It's obvious the government doesn't want to hear from the public, the decisions were already made. The issue is that the city staff and friends control what is placed on the record by not notifying the public and .additionally allowing supporters to have their unrestrictive say. In my opinion this process is just wasting tax money and creating jobs and retirement benefits for staff and lawyers. . 10. Commissioner Nancy Moore was' not qualified to. vote. She told me she drove on this part of Marcola Rd. daily to her job at a grade school up Marcola. On the last day she said she didn't know if there were sidewalks on this part of Marcola. She stated with what appeared to be an attempt at humor that the City would take 17 ft. from the front of citizens' properties. It's suppose to be on the recorded record. this is shameful. 11.. The issue of the waterway was never properly addressed. Rather than have Sunny Washburn and/or her sidekicks Kim and Phil of the city staff answer questions the city staff presented a }mung mail who acted clueless. Or maybe it wasn't an act When he was asked by a commissioner where the water comes from he answered, "1 don't know." This is an embarrassment and shameful. According to the person in the city manager's office "they are all engineers. " 12. Written notice of the decision was not mailed. '- 13. them. There were about 56 additions made without e.qual opportunity for comment on all of , 14.. There was nothing that addresses what will be done with the bike lanes which are part \ .- of the city's overall plan. Especially since it's planned to ha:ve them tom out 15. There was nothing that addresses what will be done with the. bus stops which are part of the city's overall plan. Especially since it's planned to have them tom out ATTACHMENT 8 - 37. . 'J 3 16. There was/is nothing, not a peep, about the impac;t on the environment and/or environmental controls. 17. There was nothing that reasonably described the city's final action and it was not mailed. 1.8. There was no input and no opportunity to question or comment on what the utility providers' positions are. . Utilities are part of the city's overall plan. 19. The city staff cuts-off public comment and the raising of any "new" issues because it's claimed the staff are not able to open the record for rebuttal. This is false; The record may be opened by statute and otherwise whenever the. staff or Joe Leahy feels like it. The staff and Joe . Leahy ~ontrol everything. . 20. Gary Karp and Rick Satre argued that the number of trips and thusly the traffic will be below the arbitrary alleged unprovided copies of traffic studies with the addition of 512+ homes and the constant traffic due to one of Americasl.argest major retailers. Yet Gary Karp and staff advocate major. highway expansions to accumulate alleged non-existing rise in traffic. 21 The city alleges it has alligator te!Us and no money for street repairs yet has more money to tear-up. perfectly good sidewalks, curbs, etc. in order to please a developer and investors in Reno who want someone else to pay for their improvements. 22. Have I said written notices of the hearing and decisions were not mailed nor posted timely pursuant to Oregon Statute? 23. What. about those fire hydrants? Pursuant to a court order by a federal judge a maintenance report was furnished and half of the hydrants on Marcola Road were non- operational. Fire protection is part of the,.dty's, overall plan and this was not even mentioned. 24. This issue of traffic is one of being relative. Is not traffic rated by various levels? Which level is it now and what level will.itbe? This is part of the city's overalf plan and it was never . addressed. .. ~ick Shevchynski ~ick Shevchynski, ~orth Springfield Citizens' Committee , ATTACHMENT 8 - 38 .c Affidavit I, Nick Shevchynski, first being duly sworn on oath say: I walked/jogged the per-imeter of. the former pierce property which is the proposed "'Villages' at Marcola Meadows" on almost a daily basis throughout Nov. & Dec. of '07 and during the Marcola Meadows Master Plan application case # CRP 2007-00028. At no time was there a "sign approved by the Director, . on the subject p~operty" as required by SDC 5.2-115. ./;L~. Nick Shevchynski SUBSCRIBED AND SWORN to before me a Notary for the State of Oregon on this 2nd day of January, 2008. . OFFICIAL SEAL , DiJs'nN HAHN . " NOTARY PUBUC - OREGOi'i ! COMMISSION NO. 412362 I MY C9M~IIlSION EXPIRES NOV. 29.2010 \ Q~~~ Date Received: . JAN - 4 2008 Original Submittal . ~ ATTACHMENT 8 - 39 . Satre & Associates Attention Rick Satre 132 East Broadway. Suite 536 Eugene. Oregon 97401 ZON2008-00004 Philip M. Newman 260 S. Mill . Creswell. Oregon 97426 ZON2008-QOO"o7 . Wesley O. Swanger 2415 Marcola Road Springfield, Oregon 97477 0' j ZON2008-Q0002 SC Springfield LLC 7510 Longley Lane, Suite 102 Reno, Nevada 89511 ZON2008-000OS Denn.is Hunt 3044 Yolanda Avenue Springfield, Oregon 97478 ZON2008-00008 Nick Shevchynski 2347 Marcola'Road Springfield; Oregon 97477 ZON2008-QOO03 Donna.Lentz . 1544 E Street Springfield. Oregon 97477 ZON2008-00006 Clara Shevchynski 2315 Marcola Road Springfield,Oregon 9747y " ~ toN 'daJg /Mmr: AFFIDAVIT OF SERVICE RECEIVED STATE OF OREGON JAN 1 82008 . A~ BY:ffi~ c.nuM fr; (Z..tC.€',(/, I, 'Brenda Jones, being first duly sworn, do hereby depose and.say as follows: } } ss. } County of Lane 1. I state that I am a Secretary for the Planning Division of the Development Services Department, City of Springfield, Oregon. 2. I state that in my capacity as Secretary, I prepared and caused to be . mailed copies of Copies of AIS for Marcola Meadows Appeal's to the City of Springfield City Council, mailed to the seven (7) appellants (See attachment "A") on January 1S, 200S addressed to (see Attachment "B"), by causing said letters to be placed in a U.S. mail box with postage fully prepaid th~reon. ~~ BreridaJones (j Planning Secretary STATE OF OREGON, County of Lane I ~ ,2008 Personally appeared the above named Brenda Jones, S cretary, ~ho acknowledged the foregoing instrument to be their voluntary act. Before e: -~. .~.-"_. . ,-" ,."~' ".. .'''' . . ~/I!Jj)A~. My Commission Expires: t/ IS / /1 I ( , " . OfFICIAl. sEAl. .. IoNiIICIIIi:KELLY ~.OREGON . NO. 420351 MYCOMMI9SIONI!XPlRESAUG.l',llOtt . -. . ./ . ACTION REQUESTED: Me, __g Date: January 28, 2008 Meeting Type: Regular Session Department: Development Services Staff Contact: Gary M. Karp G" I(,; S P R I N G FIE L D Staff Phone No: 726-3777 ~ C I T Y C 0 U N C I L Estimated Time: 60 minutes ITEM TITLE: APPEAL OF THE PLANNING COMISSION's APPROVAL OF THE MARCOLA MEADOWS MASTER PLAN APPLICATION. 1) The City Council is requested to address some procedural issues. 2) Then, either a) uphoid the December 20'" Planning Commission approval of the Marcola Meadows Master Plan application as conditioned, or b) approve the application with modified conditions of approval,. or c) if the Council finds it cannot affirm the Planning Commission's decision, or otherwise approve it with modified conditions. then deny the application. Seven persons, including the Property owner (SC Springfield LLC) and 6 individuais, have appealed the December 20'" Planning Commission's approval of the Marcola Meadows Master Plan. As permitted by the Springfield Development Code (SDC), and for ease of review, staff has combined all appeals into one staff report. ATTACHMENTS: .Attachment1: Staff Report: Appeal of the Planning Commission's Decision Attachment 2: Master Plan Conditions of Approval Attachment 3: Letter to Applicant's Attorney Jim Spickerman from City Attorney Dated January 8, 2008 Attachment 4: Planning Commission Minutes, December 20;' 2007 Attachment 5: Draft Planning Commission Minutes, December 11, 2007 Attachment 6: Transportation Graphics Attachment 7: OreQon Revised Statutes (ORS) 197.763 AGENDA ITEM SUM..~Y . . ISSUE STATEMENT: DISCUSSION: On June 18, 2007 the City Council by a vote of 4-2 approved Metro Plan diagram and Zoning Map amendments to allow a mixed use commercial/residential development on .the former "Pierce" property on Marcola Road. An approval condition of these applications was the submittal of a Master Plan application to guide the phased development of the property over the next 7 years. The Master Plan application was submitted on September 28, 2007. The Plimning Commission conducted pUblic hearings on this application on November 20, 2007; December 11, 2007; and December 20, 2007. At. the conclusion of the December 20th hearing, the Planning Commission voted 7-0 to approve the Master Plan; this action included 53 conditions of approval. On January 4, 2008 seven separate appeals of this decision were submitted to the Development Services Department; six of these appeals are .from 6 individuals and one is from the applicant of the Master Plan, SC Springfield LLC. . The attached staff report divides the issues raised in these appeals into the following general categories: .1) procedural challenges; and 2) challenges to findings and conditions of approval. Issues raised by the 6 individuals fall largely into this first category and include notice, participation at hearings, etc., but do not raise objections to any of the 53 conditions of approval. Issues raised by the applicant/appellant include: adequacy of findings demonstrating proportionality, imposition of conditions not justified by the criteria of approval, and delegation of decision-making authority to the City Engineer, but raise no challenges to procedure. . \ Of the numerous issues raised in these appeals the most significant, if upheld by the Council, is Condition #27 which requires the Master Plan to depict an access lane adjoining the residential properties along the south side of Marcola Road . and a roundabout at the intersection at Martin Drive and Marcola Road. Attendant to this requirement is the dedication of sufficient land to accommodate the access lane and roundabout scheduled to occur during the Master Plan's Phase 1 development. The construction of the access lane would occur within existing right-of-way, but to maintain the existing cross-section of Marcola Road, the portion of Marcola Road abutting the developme~t site would need to shift north onto this property. This shift would occur just west of the intersection of 28th and Marcola and would transition back into the existing alignment just west of the new roundabout at Martin Drive. The staffs recommendation of this condition was supported by the Planning Commission and is based on: 1) the authority granted by the Springfield Development Code to require such improvements; 2) the proposed development is the only reason improvement to Marcola Road is necessary; 3) the applicant offered no reasonably workable solution to the traffic and safety conflicts along Marcola Road created by the proposed development; 4)" access at any point along the development site's frontage with Marcola Road creates traffic safety conflicts with the. residential property along the paralleling south frontage of Marcola Road; and 5) the only successful mitigation of the impacts to these nearby properties, whether by using a roundabout or a traditional intersection design, is the inclusion cif the access lane. Without all these improvements staff cannot support the Master Plan as submitted by SC Springfield LLC, and the Planning Commission unanimously concurred with this conclusion after evaluating the facts. . . . ) '-- , "'. -;- . -1_1..'-.- _-':'':J:.. .:...!!._" ....... CITY OF SPRINGFIELD DEVELOPMENT SERVICES DEPARTMENT . 225 5th ST SPRINGFIELD, OR 97477 . _ I", Dennis Hunt 3044 Yolanda Avenue Springfield, Oregon 97478 .:'." "j I J , j I J ,.....