Willamette Oaks, LLC v. City of Eugene

273 P.3d 219, 248 Or. App. 212, 2012 WL 604346, 2012 Ore. App. LEXIS 147
CourtCourt of Appeals of Oregon
DecidedFebruary 15, 2012
Docket2011027; A149455
StatusPublished
Cited by9 cases

This text of 273 P.3d 219 (Willamette Oaks, LLC v. City of Eugene) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willamette Oaks, LLC v. City of Eugene, 273 P.3d 219, 248 Or. App. 212, 2012 WL 604346, 2012 Ore. App. LEXIS 147 (Or. Ct. App. 2012).

Opinion

SERCOMBE, J.

Petitioner Willamette Oaks, LLC (Willamette) seeks review of an opinion and order of the Land Use Board of Appeals (LUBA or board). LUBA remanded a decision by the City of Eugene approving plans for a modified tentative planned unit development (PUD), a final PUD, and a tentative subdivision for a five-parcel multi-family residential development proposed by Goodpasture Partners, LLC (Goodpasture). However, LUBA affirmed the city’s approval of certain modifications to the tentative PUD related to the development of parcel four and a condition limiting the number of motor vehicle trips to the development site. Willamette contends that LUBA erred in affirming the city’s approval of those modifications. Additionally, Willamette contends that LUBA plainly erred by remanding, rather than reversing, the city’s decision and that we should exercise our discretion to correct that error. See Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991). We affirm.

The relevant facts are undisputed. On June 14, 2010, the city approved Goodpasture’s application for a tentative PUD for an approximately 23-acre development, including

“a four-story, age-restricted apartment building, 10 three-story apartment buildings, two clubhouses and one one-story commercial building, with open space, parking and associated infrastructure.”

According to the approved tentative plans, the four-story apartment building would be located on an 8.14-acre parcel (parcel four) and contain 125 units of age-restricted residences. The apartment building’s main entrance, driveway, and parking lot would be at grade. Additionally, the plans provided for a landscaped buffer of trees and shrubs along the northern and southern property lines, garages on the northern and southern portions of the property, a bicycle parking facility on the southern portion of the property, and a six-foot fence along the southern property line. The lighting plan limited illumination near the perimeter of the building to Medium-Ambient standards.

[215]*215Based on the tentative plans, the hearing official found that the proposed development complied with the Eugene Code. The city planning commission affirmed that decision. Subsequently, in July 2010, Goodpasture applied for modification of the tentative PUD, final PUD approval, and tentative subdivision approval. The relevant proposed modifications to the tentative PUD primarily concern the development of parcel four. Specifically, Goodpasture proposed to modify the approved use of the apartment building to also accommodate assisted-living and memory-care residents and to decrease the density of the building from the approved 125 units to 111 units. Additionally, Goodpasture sought approval of physical changes to the apartment building and other parts of the development on parcel four, including the following: (1) reducing the number of stories within the apartment building from four to three, thereby decreasing the height of the building by seven feet and the building’s footprint from 49,050 square feet to 42,650 square feet; (2) using fill and retaining walls to create a “graded entry drive to bring vehicles from street grade up to a second level round-a-bout, and porte-cochere drop off area which provides access to the main building entry”; (3) eliminating the garages; (4) reducing the number of parking stalls; (5) adding a maintenance shed to the northeast corner of the property; (6) eliminating the bicycle parking facility on the southern portion of the property; and (7) altering the landscaping on the northern and southern property lines.

The city planning director approved Goodpasture’s applications. Willamette appealed to the hearing official and contended, among other things, that the proposed modification of the tentative PUD did not meet the criteria for approval under Eugene Code (EC) 9.8335. That code provision permits modification of an approved tentative PUD only if two criteria are met. First, the proposed modification must be consistent with the conditions of the original approval.” EC 9.8335(1). Second, the proposed modification must only “result in insignificant changes in the physical appearance of the development, the use of the site, and impact on the surrounding properties.” EC 9.8335(2). The hearing official found that, because the proposed modification was consistent with the conditions of approval imposed by the city when it [216]*216simultaneously approved and reconditioned the final PUD, the requirement of EC 9.8335(1) was met. The hearing official also determined that EC 9.8335(2) was met because the proposed changes to the development’s physical appearance, use, and impact on surrounding properties were insignificant. Additionally, the hearing official deferred the analysis of the geotechnical data, which was required as a condition of the original tentative PUD to occur at the final PUD stage, until later administrative permitting stages. The hearing official also revised the vehicle trip cap condition that was imposed as part of the original tentative PUD to provide that,

“[p]rior to executing the performance agreement, the applicant shall revise the final site plan to add the following note: ‘The maximum development on the site shall be limited so that it would not produce more than 287 trips in the AM peak hour and 321 trips during the PM peak hour as determined by the Institute of Transportation Engineers Trip Generation Manual, using code 230 — Apartments for all unrestricted residential apartments on the development site. The city may allow development intensity beyond this maximum number of peak hour vehicle trips only if the applicant submits to the city and ODOT a traffic impact analysis that demonstrates that the proposed intensification of use would be consistent with the Transportation Planning Rule (TPR) at OAR 660-012-0060. The applicant shall seek and the city shall consider such approval using the city’s Type II land use application procedure. Prior to construction of the final phase, the applicant shall conduct a current traffic study that counts the actual number of trips currently occurring to determine if the final phase would require a revised traffic impact analysis and additional improvements to comply with the Transportation Planning Rule. The city shall not issue building permits for the final phase until the applicant has received approval of the revised traffic impact analysis.’ ”

The hearing official explained the reason for the revision:

“At the hearing, the applicant stated that it believed the trip cap would allow an increase in the number of trips from Parcel 4 at this time, because the trip cap is for the overall development, which would occur in many phases. With this approach, the applicant would need to evaluate the actual number of trips before constructing the later phases and revise the traffic analysis if necessary. The hearing official [217]*217agrees that is a plausible interpretation of [the trip cap condition] and will revise [it] to make this clear * *

Willamette sought review of the city’s decision by LUBA, asserting, among other things, that the city misconstrued EC 9.8335. Specifically, Willamette asserted that the city erred in approving modification of the tentative PUD because the proposed modifications were not consistent with the conditions of original approval and they resulted in more than insignificant changes to the development’s physical appearance, use, and impact on surrounding properties.

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Cite This Page — Counsel Stack

Bluebook (online)
273 P.3d 219, 248 Or. App. 212, 2012 WL 604346, 2012 Ore. App. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willamette-oaks-llc-v-city-of-eugene-orctapp-2012.