HomeMy WebLinkAboutApplication APPLICANT 3/16/2010
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:City of Springfield
Development Services Department
225 Fifth Street
Springfield, OR 97477
Appeal
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A eal:
of a Director's Decision:
of an Expedited Land Division:
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of a Historic Commission Decision: 0
of a Planning Commission Decision: 0
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Case Number: l)
Pro'ect Name:
Date of Filing the Appeal:
Must be within 15 calendar da s of the date of decision
Date of Decision: 1'1 t!t fc t. <<
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Briefly list 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, Le, what approval criterion or criteria you allege to have been inappropriately
Issues: applied. If you are filling in this form by hand, please attach your list of issues to this application,
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A ellant Name:
Address: ...?
[9--oWner
o Applicant
o Person notified of the request as an adjacent owner or occupant
o Person asked to be notified of the request
o Other Explain: ~1~O'2..-2.0-O0ll.... 100 21)07D()
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Statement of Interest:
(check one)
Si nature:
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Associated Cases:, ~WIO - 00004-
Si ns:
Case No.: zotJ 2..01 CY- 0000<0
Date: ..6 I f(a { 10
Reviewed b
A
lication Fee: $ ZC;;O ,0-0
Technical Fee: $
11
Posta e Fee: $
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TOTAL FEES:
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PROJECT NUMBER: P rz.S WO<b'
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MAR 1 6 2010
Revised 1l(17(08ddk
Original Submittal
1 of 3
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LAW OFFICE OF BILL KLOOS, PC
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OREGON LAND USE LAW
375 W. 4'" STREET, SUITE 204
EUGENE, OR 97401
TEL (541) 343-8596
FAX (541) 343-8702
E-MAIL BILLKLOOS@LANDUSEOREGON.COM
March 16,2010
Director
Springfield Development Services
225 Fifth Street
Springfield, OR 97477
Date Received:
Re:
Appeal of Site Plan Review for The Child Center
File: DRC 2010-00004
MAR 1 6 2010
Original Submittal !l ;z'
Dear City of Springfield:
Please accept this letter and the enclosed check for the filing fee ($250.00) as an appeal of the
Director's approval in the matter above. This appeal is filed on behalf of the owner/applicant,
Mental Health for Children, Inc.
My client agrees that the Site Plan should be approved, but objects to some of the conditions
imposed as not being supported by the applicable standards for approval. The applicant also
objects to the tiling fee paid for the application, as in violation of state law.
This appeal is filed under SDC 5.3-115. Based on that code section, the applicant expects that the
Planning Commission will conduct a de novo public hearing on this matter and issue the final
local decision.
Standing to Appeal: My client has standing to appeal as the owner and applicant.
Timely Filing: This appeal is timely as it is filed within the time allowed by the decision.
Criteria that Apply:
This is a Site Plan Review application. There are five criteria for approval stated in SDC 5.17-
125. We restate those criteria here for reference in the balance of this appeal.
5.17-125 Criteria
The Director shall approve or approve with conditions: a Type II Site Plan Review
application upon determining that approval criteria A. through E., below have been
satisfied. If conditions cannot be attached to satisfy the approval criteria, the Director
shall deny the application.
A. The zoning is consistent with the Metro Plan diagram, and/or the applicable
Refinement Plan diagram, Plan District map, and Conceptual Development Plan.
B. Capacity requirements of public and private facilities, including but not limited to,
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Date Received:
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Springfield Development Services
March 16,2010
Page 2
MAR 16 2010
Original Submittal tJ;L
water and electricity; sanitary sewer and storm water management facilities; and
streets and traffic safety controls shall not be exceeded and the public
improvements shall be available to serve the site at the time of development,
unless otherwise provided for by this Code and other applicable regulations. The
Public Works Director or a utility provider shall determine capacity issues.
C. The proposed development shall comply with all applicable public and private
design and construction standards contained in this Code and other applicable
regulations.
D. Parking areas and ingress-egress points have been designed to: facilitate vehicular
traffic, bicycle and pedestrian safety to avoid congestion; provide connectivity
within the development area and to adjacent residential areas, transit stops,
neighborhood activity centers, and commercial, industrial and public areas;
minimize driveways on a11erial and collector streets as specified in this Code or
other applicable regulations and comply with the ODOT access management
standards for State highways.
E. Physical features, including, but not limited to: steep slopes with unstable soil or
geologic conditions; areas with susceptibility of flooding; significant clusters of trees
and shrubs; watercourses shown on the WQL W Map and their associated riparian
areas; wetlands; rock outcroppings; open spaces; and areas of historic and/or
archaeological significance, as may be specified in Section 3.3-900 or ORS
97.740-760,358.905-955 and 390.235-240, shall be protected as specified in this
Code or in State or Federal law.
Issues on Appeal:
1. Condition 9 is objectionable. It requires an improvement agreement for Marcola Road
street lighting. The city has not related this condition to an applicable approval criteria
and has not otherwise established a basis for this condition. This condition imposes a
potentially very heavy, unnecessary financial burden on the applicant.
a. Finding 41 recites that Marcola Road is fully improved with street lighting that is functional.
Therefore, there is no "capacity" issue that needs to be resolved.
b. Upgrading of the street lights to some newer, higher standard is not based on any
acknowledged land use regulation that the city is allowed to apply to this decision.
c. This condition requiring an off-site improvement amounts to an exaction that the city has not
justified under Dolan.
2. Condition 10 is objectionable. It is based on Finding 44. It requires placement of street
trees along the western portion of the site, which is not being developed at this time. The
applicant sought delay in placing street trees along the western frontage for economic
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Springfield Development Services
March 16,2010
Page 3
reasons. In requiring their placement now, the city has not identified a requirement to
place the trees.
a. The condition references SDC 4.2-1 05.G.2.a. This code section requires street improvements
across the entire property frontage "[ w ]henever a proposed land division or development will
increase traffic on the City street system and the development site has unimproved street
frontage." This language is not a trigger for this condition. (I) The proposed development will
not increase traffic on the street system, as the development is an upgrade to the school program,
not an expansion of the school program. (2) The development site does not have unimproved
street frontage; it has improved street frontage. Under the language of the standard, there is no
basis for these improvements if either (I) or (2) is correct.
3. Condition 11 is objectionable. It is based on Finding 45. It requires the applicant to
repair the public sidewalk along the frontage that was damaged by city employees
negligently using city heavy equipment.
a. This condition is not referenced to and is not based on any code standard. If the city believes
that it is grounded in the same code language as Condition 10 above, then it is not justified for
the same reasons as stated immediately above.
b. This condition also flunks the common sense and equity test. The city knows that the
sidewalk was damaged along this frontage by city staff driving heavy equipment on it to cut
brush. The property owner complained of this action to the city and stated the risk to the
sidewalk. The thoughtless behavior of city staff continued, and the sidewalk cracked. The city
has taken responsibility, and it has been replacing fhe sidewalk incrementally, as funds allow.
(And city maintenance staff are no longer driving the heavy equipment on the sidewalk; so there
is a learning curve working here.) However, with this condition the city is trying to shift the
financial burden for the balance of the repairs to the property owner. The city should rethink
this.
4. Condition 14 is objectionable. It is based on Finding 53, although not justified by that
finding. It requires the applicant to lock the gate at the eastern gravel driveway entrance
that provides access to the existing parking area along the east edge of its property and give
the city sole control over the lock. This condition excludes the property owner from using a
portion of its site for parking, as it has been using it for many years. It is a city lockout
from a part of the site.
a. This condition is not based on any city standard that applies to this decision; it is not
necessary to establish compliance with any standard that applies to this application.
b. This condition relates to a portion of the site that is not involved in this development proposal.
The gravel driveway the city insists be locked, with the sole key being given to the city, provides
access to a lower bench adjacent to the river, which is graveled and has been used for parking for
many years. This portion of the site is not involved in this site plan review application. It is
beyond the scope of this site plan review. Date Received:
MAR t 6 20m
Original Submittal iZY--
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Springfield Development Services
March 16, 2010
Page 4
c. This condition amounts to an exaction that the city has not justified under the test in Dolan.
Demanding access to the parking area on the lower bench be gated and locked, with the city
having the only key to the lock, denies the applicant access to and use of a portion of its
property. It is in the nature of the city imposing a negative covenant on the use of the property, or
demanding the granting of an exclusive use easement to the city. It is an exaction that needs to
be justified under the test in Dolan. The applicant does not believe the city can justifY the
exaction under the constitutional standard.
d. If closing the access to Marcola Road could be justified in connection with some city
standard, then the city should add a condition to the approval that allows the applicant to make
an access connectioin from the east end of the parking lot to the driveway headed down the hill.
This would be a very short connection, at a very shallow grade, and would allow unrestricted
access to the easternmost part of the site without any direct access to Marcola Road.
5. Condition 25 is objectionable. This condition relates to Finding 95, which references
SDC 4.2-120.A.1. The condition is: "The applicant is advised that the entire site, including
vacant areas with future development potential, can be adequately served by the two paved
driveway connections onto Marcola Road." This condition misinterprets the code language
and extinguishes access rights that presently attach to legal lots on this site that have
development potential. Under this condition, the substantial vacant acreage on the west
part of the site, which includes a separate legal lot, will have to take access via the driveway
of the school facility. This poses security, privacy, and safety problems; it therefore limits
the development potential of the vacant legal lot to the west.
a. SDC 4.2-120.A provides:
Site Access and Driveways - General.
1. All developed lots/parcels shall have an approved access provided by
either direct access to a:
a. Public street or alley along the frontage of the property;
b. Private street that connects to the public street system. The private street shall be
constructed as specified in Section 4.2-110 (Private streets shall not be permitted in lieu
of public streets shown on the City's adopted Conceptual Street Plan or TransPlan); or
c. Public street by an irrevocable joint use/access easement serving the subject property
that has been approved by the City Attorney, where: i. A private driveway is required in
lieu ofa panhandle driveway, as specified in Section 3.2-2208.; or ii. Combined access
for two or more lots/parcels is required to reduce the number of driveways along a
street, as determined by the Public Works Director.
The western part of the site has a legal lot and several acres of undeveloped land. Thus, it has
development potential. The condition can be read as limiting the access for that future
Date Received:
MAR 1 6 2010
Original Submittal tJ)L.-
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Springfield Development Services
March 16,2010
Page 5
development to the access driveway being created for this improvement. That is, whatever
future development might occur on the western part of the site, that development must use the
school driveway to get to Marcola Road. This misinterprets the code standard above and turns it
on its head. The plain language of the standard says that the legal lot on the west needs to have
access to Marcola Road to be developed. This condition uses that requirement to restrict future
access for the western legal lot. The standard intends to ensure access is preserved; the condition
is being applied to extinguish access. The decision has it basically backwards.
The condition states that the entire site, including the vacant undeveloped portion, can be
adequately served by the proposed driveway; however, that statement is not based on any
analysis or knowledge of the density or traffic generating potential of the undeveloped land.
6. Condition 26 is objectionable to the extent it requires changing the location of the
intersection of the east driveway and Marcola Road. The applicant has designed the
driveway intersection as close as possible to Hayden Bridge Road, given the improvements
that must be fit on the site. The city routinely approves driveway intersections with equal
or greater offset than what is proposed here. The city should approve the plan for the east
driveway.
7. Condition 27 is objectionable to the extent that it requires a less steep angle of
intersection between the east driveway and Marcola Road. This condition is based on
Finding 93, which references SDC 4.2-120.C., which references other standards. The
applicant has designed the driveway intersection as close to 90 degrees as possible, given
the improvements that must be fit on the site. The angle of intersection is 9 degrees off
axis, or 81 degrees from true perpendicular. The city routinely approves driveway
intersections with streets with angles that are more severe than what is proposed here. The
city should approve the plan for the east driveway.
a. SDC 4.2-130.8. is not a standard that applies to this driveway intersection. That code section
applies to the intersection of two streets, not a street and a driveway, as we have here.
b. If SDC 4.2-130.B. were an applicable standard, this proposal meets the code standard for an
intersection "of at least 80 degrees."
c. The city has not identified any other acknowledged land use standard for an intersection
between a driveway and a street that applies to this design and which the design does not meet.
8. The applicant objects to Finding 39, to the extent that it may influence the city's
calculation of traffic SDC charges.
The linding classifies the use as ITE Land Use Code 720 (Medical-Dental Office Building) and
calculates trips for purposes of future SDC charges. This use is a school, not a medical-dental
office. This finding does not belong in this proceeding, as this proceeding does not relate to
SDCs. It is a land use proceeding. To the extent the linding may be relevant in this proceeding,
it is factually and legally incorrect. The City has specifically stipulated in the Devel<m~tReceived:
MAR t 6 2010
Original Submittal 4~
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Springfield Development Services
March 16,2010
Page 6
Issues Meeting that this facility will be reviewed in the code as a school. The applicant requests
an ITE Land Use Code classification appropriate for schools. The City's SDC methodology
calculation worksheet Attachment D lists categories of land uses and the associated trip
generation rates based on specified units of measurement. Not all land uses are listed, and often
the ITE Trip Generation Manual must be referenced. Attachment D lists "STUDENT" as the
unit of measurement for schools, not square feet. Transportation professionals would typically
review a large use like a school as one use (not individual gymnasiums, cafeterias, medical-
dental offices, libraries, etc.). That is because a stand-alone medical dental office use would
include overlapping services such as refuse and other services that already access the site for the
whole use, a school. As stated in the applicant's submittal, the proposed replacement building
will not add staff or new students to the site, and it will not be a new service that the site offers.
Therefore, there is no proposed new traffic generator of a stand-alone commercial medical-dental
office as staff has found. The appropriate land use code for this site is Private School, as
previously designated and required by the city, and the appropriate unit of measurement for the
trip generation rate is by number of students as Springfield applies to other Schools.
9. The applicant objects to the calculation of fees for this application, and it requests a full
refund ofthc fees.
Fees were $ $15,445.90 for this Site Plan Review application. The fees were calculated in large
measure based on the proposed increment of impervious surface. This basis of calculation is
contrary to state law. This Site Plan Review decision is a statutory "permit" in the meaning of
ORS 227.160(2). Statutes set the parameters for city fees for processing. ORS 227.175(1) says,
in relevant part: 'The governing body shall establish fees charged for processing permits at an
amount no more than the actual or average cost of providing that service." Statutes apply
directly to land use decisions, including with respect to the charging of fees. Forster v. Polk
County, 115 Or App 475, 478,839 P2d 241 (1992); Mazoral v. City of Bend, _ Or LUBA_
(LUBA No. 2009-038, July 29, 2009), Slip op 6.
The basis for the fees charged is not related to the actual or average cost of processing this
application. The fees are tied to the amount of impervious surface, which is logically unrelated
to the amount of work needed to process. Therefore, the fees charged are contrary to statute.
Because the basis for the fees charged is contrary to statute, the fees should be refunded to the
applicant. The city has no basis for changing the amount of the fee. Therefore, the correct thing
to do is simply refund the fees.
We raise this issue here to preserve it for appeal, if necessary. The fees issue is an integral part of
the land use decision. The fees were imposed under an ordinance that is an integral part of the
zoning provisions governing the processing and review of land use applications. The fee
decision, therefore, is a part of the land use decision subject to LUBAjurisdiction, and it can be
challenged as applied in the context of an individual decision. See Mazoral v. City of Bend,_
Or LUBA _ (LUBA No. 2009-038, July 29, 2009)(reasonableness of local appeal fee under
ORS 227.180(l)(c) can be challenged as applied); Young v. Crook County, 56 Or LUBA 704,
afl'd 224 Or App I, 197 P3d 48 (2008)(sanle); Doty v. City of Band on, 49 Or LUBA 411
Date Received:
MAR 1 6 2010
Original Submittal $;::./
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Springfield Development Services
March 16,2010
Page 7
(2005)(resolution adopting new application fee schedule is a land use decision); Friends of
Yamhill County v. Yamhill County, 43 Or LUBA 270 (2002)(decision increasing the fee for a
local appeal is a land use decision).
10. Condition 1 is objectionable, if it is read by the city to require burying the overhead
electric line that serves the building on Tax Lot 200.
This implements Finding 10. Based on Finding 10, it may be that Condition 1 does not require
the applicant to bury the line servicing TL 200 at this time. If, however, Condition 1 requires
burying the line at this time, then the condition should be amended to eliminate the requirement,
as no development is proposed for thistax lot.
My client looks forward to working with staff to get these issues resolved before, during, or as a
result of the public hearing on this matter.
Thank you for your consideration.
Sincerely,
Bill Kloos
Cc: Client
Date Received:
MAR 1 6 2010
Original Submittal a;;L-