City Staff Proposes to Invalidate JWN Special Area Zone Protections and Double Density

Summary

The saga of the ADU Ordinance past back in 2018 is another example of the failure of the City Planning Department to conduct meaningful public outreach and engagement – no one WANTS to appeal ordinances and the required public outreach in the development of ordinances is designed to surface issues and avoid court battles. Unfortunately, Planning usually creates ordinances and then fights to defend them. The results are plain.

Let us make a few things clear:

The JWN is not “against” density or ADUs – we just believe, as has been demonstrated by S-JW and S-C Zones, you can have density and mitigate the worse impacts with properly designed code.

Appeals do not just happen when someone gets upset at an ordinance, appeals must be based in either process or technical errors by staff or over a conflicts in interpreting statues.

Despite charges to contrary, delay in any ADU Ordinance is not due to any actions of the JWN. All of the delay in implementing ADU regulations has been due to staff errors and appeals by the HBA and their allies.

Planning staff have affirmed that the JWN proposal meets all requirements under SB 1051.

The staff proposal has changed to such a degree that it must be subject to new reporting and public hearing requirements. Therefore, regardless of whether Council chooses the staff’s or JWN’s proposal, the ordinance cannot be passed without further public process.

History of Appeals Related to Accessory Dwelling Units (ADUs) 2018-2021

The table on the following pages provides a recap of the six appeals related to ADU regulations that the City has lost (five LUBA decisions and one Court of Appeals decision). The City has not prevailed in any of the ADU appeals since 2018.

The Homebuilders Association of Lane County (“HBA,” below), represented by attorney Bill Kloos, was the appellant in all three of the appeals related to the “ADU ordinances.” Various parties, e.g., Eliza Kashinsky and her “WECAN” group, also supported these appeals as “Intervenors-Petitioner.”

An individual (“Kamps-Hughes”) was also represented by attorney Bill Kloos as the appellant in all three of the appeals of a proposed ADU development on an alley access lot.

Together, these cases were part of a “two-pronged” approach (“legislative” regarding the ordinances and “quasi-judicial” regarding the proposed ADU development). The intent of both efforts was to achieve substantial deregulation of ADUs – a stated a goal of the HBA and their allies.

Note that none of the appeals were brought by the JWN or any of its members. All of the delay in implementing ADU regulations has been due to staff errors and appeals by the HBA and their allies.

In the table below:

  • An “û” indicates an “error” by the City that resulted in a remand.
  • An “ü” indicates a provision that LUBA held to be legal.

With respect to the JWN’s two “special area zones”:

  • No remand has cited any error in the S-JW Jefferson Westside Special Area Zone or the
    S-C Chambers Special Area Zone.
  • LUBA affirmed that the S-JW Zone’s approach to allowing two dwellings of any type on standard lots fully complied with the statutory requirements for allowing ADUs.
  • LUBA directed the City to “clarify” the S-JW Zone’s special provision for off-street parking exemptions; however, LUBA did not find error in that provision.
  • The JWN has proposed a set of amendments to the S-JW and S-C Zones that would fully conform with all statutory requirements, with all decisions by LUBA and the Court of Appeals, and with all applicable policies of the local “comprehensive plan,” including the Eugene-Springfield Metropolitan Plan, the Westside Neighborhood Plan, and the Jefferson-Far West Refinement Plan.

This document was prepared on September 13, 2021 by Paul Conte, former JWN Chair and Earth Advantage Accredited “ADU Specialist.” All entries are based on City and LUBA records.

Supporting Documentation for the JWN Proposal

This memo provides and overview of the process to date and the status before Council.

MEMO

DATE:      September 11, 2021

TO:          Eugene Mayor and City Council

FROM:     Ted Coopman, Chair, Jefferson Westside Neighbors
Paul Conte, Earth Advantage Accredited “Accessory Dwelling Specialist”

SUBJECT: Response and corrections to Jeff Gepper’s email of September 9, 2021

Mayor and Councilors:

If you carefully read Jeff Gepper’s September 9th email to you, you will see that his statements greatly simplify your forthcoming decision regarding the fourth attempt at implementing an “ADU ordinance.”

  1. Staff acknowledges the legal sufficiency of the JWN recommendation for amendments to the
    S-JW and S-C Zones.

Mr. Gepper acknowledges in writing that “[S]taff believes that the JWN’s proposed code would accomplish their goal.” The JWN’s goal has consistently been stated as complying with all statutory and judicial requirements, fully conforming to the comprehensive plan, and having the support of the impacted JWN members.

In recent verbal and written communications, as well, staff have dropped all prior assertions that the JWN proposal has provisions that would not meet all statutory, case law and comprehensive plan requirements. It is good to have that in writing as the Council evaluates the alternatives before you.

  1. Staff clarifies that the City Council would need only to follow appropriate public process to properly adopt the JWN recommendation for amendments to the S-JW and S-C Zones

The only remaining substantive point that staff presents is that replacing the staff’s July 12th version of amendments to the S-JW and S-C Zones would require “notice to the JWN residents and at least one more public hearing.”

The JWN unequivocally supports a process that provides full notice to, and engagement of, impacted residents and homeowners. We recommend the City Council direct the City Manager to take those process steps, irrespective of what version of the “ADU Ordinance” you choose to adopt.

  1. The record unequivocally establishes that the City did not follow the legally required process for public and DLCD notices and public hearing.

Note well: Based on staff’s own advice, adopting staff’s July 12th recommendation without following the staff’s own recommendations for notices and a new hearing would inexorably lead to a certain remand because of multiple procedural errors, as explained below.

There’s particular irony in the “trap” that staff’s hypocrisy and obstinance has unwittingly laid for the City Council – Staff utterly failed to meet the very same requirements for notice and hearing that staff has repeatedly insisted – in writing – would be required for the City Council to adopt the JWN recommendations. Those procedural errors are sufficient reasons that the ordinance would face certain remand if adopted on September 15th.

Mr. Gepper unequivocally states staff’s legal opinion:

“The changes proposed by JWN would result in an ordinance that is significantly different from the one considered by the City Council at its July 12 meeting.  …  [S]uch significant amendments would require additional public outreach and at least one more hearing.”

As detailed below, here is that same statement, but applied to the staff’s current proposal and the documented history of staff’s failure to conduct the ordinance adoption process in a manner that complied with statutory requirements:

“The current version of the ordinance proposed by City staff would result in an ordinance that is significantly different from the version identified in the DLCD notice sent on April 12th, the version identified in the public notice on April 13th, and the version that was subject of the May 17th public hearing.  …  [S]uch significant amendments would require additional public outreach and at least one more hearing.”

The details are set forth below.

  1. The City Council has three alternatives to consider.

Councilors should reflect on the shopworn, but apropos saying: “What’s sauce for the goose is sauce for the gander.” Although the Mayor and councilors would certainly wish the staff had not put them in this position; unfortunately, the staff has left the council with only three alternatives:

Alternative A: Take the necessary steps to properly approve an ordinance with the staff recommendation. That would require that the City to: provide an updated, accurate public notice;  provide an updated, accurate notice to DLCD conduct a new public hearing; and then approve the ordinance. The ordinance would still be appealed on the substantive issues of failure to demonstrate conformance with the comprehensive plan density designation and specific refinement plan policies.

Alternative B: Take the necessary steps to properly approve an ordinance with the JWN recommendation. Revise the ordinance, provide public notice, provide notice to DLCD, conduct a hearing, and then approve a revised ordinance. The ordinance would not likely be appealed because a) it is rock-solid in implementing the “1-to-1” rule of the Court of Appeals; b) it conforms with the comprehensive plan; and c) parties (such as the Homebuilders) that are pushing the less stringent ADU regulations want them to be available to developers as soon as possible. An appeal, based on the JWN recommended ADU regulations, would not be in their interests.

Alternative C: Approve an ordinance with the staff recommendation on September 15th. That ordinance would be appealed within the 21-day period. The LUBA appeal process would take at least until January 19, 2022, before a LUBA decision could be rendered. Based on the expert advice of the Portland-based land use attorney, Bill Kabeiseman, it is near certain that LUBA would remand the ordinance for the FOURTH time because of both procedural and substantive errors. (Mr. Kabeiseman has prevailed over the Eugene City Attorney in numerous cases, and you can expect him to do so once again.)

In the unlikely event that LUBA did not remand the ordinance, the LUBA decision would be appealed to the Court of Appeals. That appeal would take at least until Fall 2022 and would likely result in a remand.

The prospects for the three alternatives are summarized in the following table.

Alternative Likelihood of Appeal Likelihood of Remand
(A) Staff recommendation with notices & hearing Certain High
(B) JWN recommendation with notices & hearing Low Low
(C) Staff recommendation without notices & hearing Certain Very High

Rational councilors will recognize that options (A) and (B) are the only ones to consider. Consequently, a modest delay to meet the legal requirements for notices and hearings would be the same for the staff’s latest recommendation as for the JWN recommendation. But only alternative (B) maximizes the chances that the ADU regulations will go into effect this Fall.

  1. Staff failed to comply with statutory requirements for adopting land use code amendments.

Here is the history of the staff failure to comply with the statutes and OAR requirements for land use code amendments:

  • On April 12th, the City provided DLCD a copy of the same public notice that was mailed to individual parties the next day. April 12th was the last allowable date to comply with statutory requirements for the May 17th public hearing. However, the City did not provide DLCD with the required proposed ordinance because it was not even created until April 16th. Thus, the City failed to comply with the statutory requirement to provide the text of a proposed land use code ordinance 35 days before a public hearing.

“The public hearing notice was the only document uploaded on that date.”
Email from Amy Janisch May 28th

This failure to provide timely and adequate notice to DLCD is a remandable error.

  • On April 13th, the City issued a Notice of Public Hearing on May 17th. This notice was sent to just 15 of the 1,100 property owners in the S-JW and S-C Zones, even though the proposed ordinance would double the density, remove parking requirements, and gut development standards for ADUs.
  • The proposed ordinance was not actually available to the public until April 16th, as admitted by Planning Division staff:

“The second statement [in the public notice] misled interested parties to believe that the proposed ordinance is available for viewing, which isn’t accurate, yet.”
Email from Jeff Gepper, April 15th

  • On Friday, April 16th, a still incomplete version of the proposed ordinance was made available to the public. (Staff appears to have removed this from the City’s website, but this version of the ordinance has been submitted to the record in anticipation of an appeal being filed.)
  • On Thursday, May 6th, significant code amendments to the S-C Zone were added to the ordinance, but no notice was sent to DLCD or any local party.

In fact, the added code covered an entirely new geographic area. Whereas the code that was subject of the original notice covered only the S-C/R-1 subarea (west of Chambers Street), a whole new section was added that covered the S-C/R-2 subarea (east of Chambers Street). The City was required to provide an “amended” public notice, as well as an amended notice to DLCD, but did either. These failures to provide timely and adequate public notice and notice to DLCD are remandable errors.

“Attached is the notice that was sent to DLCD on April 12, 2021. No additional notice has been uploaded to DLCD after this date. Email from Jeff Gepper, May 21st

  • On May 12th, the City Council held a work session to consider the revised ordinance, rather than the ordinance that was subject of the DLCD and public notices.
  • On May 17th, the City Council held a public hearing. The May 6th version of the ordinance was the legal subject of the public hearing, but the only notice to DLCD and the public was for the April 16th version of the ordinance. This failure to provide timely and adequate notice to the public is a remandable error.
  • The City Council cancelled the vote scheduled for their May 24th
  • On July 1st, staff presented the City Council with “Option B,” which the City Manager recommended the City Council adopt at their July 12th work session. “Option B” made radical changes to the ordinance that was subject of the May 17th public hearing. This version gutted the S-JW development standards that would have applied to “accessory dwellings.” Inexplicably, the staff has now proposed that accessory dwellings in the S-JW and S-C Zones be subject to the unique ADU standards tailored to the University area neighborhoods. It is absurd on its face to apply standards tailored to the very different context of the University area rather than retain the much less stringent S-JW standards already in existence for all additional dwellings, including ADUs.

“[S]taff is proposing the make any accessory dwelling proposed within the S-JW subject to the ADU standards that apply in our university area neighborhoods … at the proposed
EC 9.2751(17)(c).”

The City did not provide the required notice to DLCD. This failure to provide timely and adequate notice to DLCD is a remandable error.

The City also did not provide any notice to a single homeowner or resident of the S-JW and S-C Zones, nor did the City hold a public hearing for an ordinance that is now dramatically different than the initial, incomplete version of the ordinance that was noticed on April 13th  – process steps the City Attorney now unabashedly claims must be done if the City Council intends to adopt the JWN recommendations, which comprises far less substantial changes.

  1. Gepper’s email to the City Council is replete with false, misleading, and incomplete statements.

As has been his practice throughout the past several months, Mr. Gepper plays fast and loose with the truth, revealing once more the staff’s unremitting efforts to torpedo any chance that the City Council would give serious consideration to the JWN’s recommendations.

  • Gepper conveniently provides a selective and incomplete description of the events following the City Council’s postponement of a decision on the ADU ordinance at the July 12th council meeting. Ted Coopman has provided councilors with an honest description of the staff’s duplicity and lack of good-faith collaboration.

  • Gepper states: “[T]he JWN proposal would make substantial changes to the way residential uses, parking and land divisions in the JW [sic] zone are regulated.”

Facts: Each and every residential use that’s allowed in the current S-JW Zone code would still be allowed. Every possible residential development that is currently allowed would still be allowed. In addition, additional provisions would allow a second dwelling as “accessory dwelling” on alley access only lots and small lots where the current code allows only one dwelling. In addition, more dwellings would allowed on some larger lots than in the current code. These are “substantial changes” that allow higher density and more options across the board.

Fact: The JWN proposal results in the same or lower number of required off-street parking spaces compared to what’s currently allowed. This is a “substantial change” that reduces off-street parking requirements.

Comment: These statements to the City Council by Mr. Gepper are patently misleading.

  • Gepper states: “[C]ode amendments proposed by JWN would change or eliminate some of the JW [sic] zone’s current allowances for the creation of housing (e.g. elimination of current code’s allowances for the creation of small lots and alley access lots).”

Fact: The JWN proposal would explicitly still allow creation of small lots just as in the current code.

Fact: The JWN proposal does not eliminate any creation of housing on alley access lots and small lots.

Comment: These statements to the City Council by Mr. Gepper are demonstrably false.

  • Gepper states: [S]staff prepared a document setting out each amendment proposed by JWN, with staff analysis/comments after each such amendment, reiterating what staff had communicated at the meetings and, in some cases, providing more detail.”

Fact: As covered in Ted Coopman’s truthful account, the staff added numerous (baseless) objections in their “review” that were not raised in the meeting or were raised and disposed of.

Fact: The staff “review” comments did not reflect the latest version of the JWN proposal, which was provided to the staff and is in the City Council packet.

Fact: The “analysis” in the document Mr. Gepper submitted is rife with errors, falsehoods, and irrelevant expressions of personal opinion. Mr. Gepper conspicuously withheld from councilors the JWN’s rebuttal that was provided and which dispensed with the meritless objections. That document is the final document in the set of documents that Ted Coopman submitted in your packet.

  1. Conclusion

In contrast to the Planning Division staff, the JWN has provided the City Council with solid, professional-quality recommendations for code amendments to the S-JW and S-C Zones that has been vetted by a top-drawer land use attorney and which has the support of the JWN Executive Board and scores of JWN residents, as documented in the JWN survey and letters to the City Council.

The JWN proposal is without question the proposal that deserves the City Council ‘s support and which would provide the Mayor and Council the best chance of “getting this done” without unnecessary delay.

We urge councilors to support a motion to take the necessary steps so that the JWN recommendations are incorporated into the ADU ordinance.

 

Update September 2021:

City Staff Renege on Agreement

In talks with city management and staff, they agreed to work off of the JWN draft proposal and identify what they thought were specific issues or deficiencies. We had cleared our proposals with a Land Use attorney. In a hour meeting that included Ward 1 Councilor Emily Semple, staff identified five or so issues that we discussed and later followed up with documentation.

In response, city staff rejected our proposal wholesale, completely ignoring all previous discussions and agreements.

If the City Council votes to approve this latest staff ordinance that includes a massive increase in neighborhood density it will be appealed and cause another year long delay.

The JWN Executive Board has been trying to work with Planning Division staff for months to draft elements of the ADU (accessory dwelling unit) ordinance that directly affect our neighborhood’s special area zones. The city has been working on this ordinance since 2018 and has lost three times at the Land Use Board of Appeals due to problems with their proposed rules.

Get informed: visit jwneugene.org to review our proposal.

 


City of Eugene Planing Department staff are proposing a radical revision of residential zoning across the city as well as specific changes to our Special Area Zones. The rationale is compliance with state mandated changes (SB 1501 and HB 2001) but the changes far exceed the requirements. The JWN has two major concerns; (1) the lack of notification and virtually no public process or change for input and; (2) NO provisions or mandates to ensure that housing is affordable (the stated rationale for the changes) and the high likelihood redevelopment gentrification eliminating existing affordable rentals and entry-level homes.

The first phase involves compliance with SB 1501 and how significant changes were proposed with no warning for chance for public input.For a full overview of the timeline see this special eNews Edition.

  • Only 15 of over 1,100 households were notified of this radical upzoning and no one from the JWN Executive Board was contacted to provide input into the Planning Division process.
  • Despite repeated, good-faith requests from the JWN Chair, staff rebuffed any constructive engagement and instead held back JWN comments and recommendations from the City Council.
  • No one knew the full extent of the extreme nature of the upzoning until May 5, just 12 days before the May 17 Public Hearing. No time to become informed or formulate effective comments.

 

Quick Guide to the Jefferson Westside Neighbors’ Proposal for Zone Amendments to the

Jefferson Westside Special Area Zone and the Chambers Special Area Zone

Recent State laws require City of Eugene to amend its residential zones, including two “special area zones” in the JWN:

  • Jefferson Westside Special Area Zone (“S-JW”): Bordered roughly by Polk, W. 8th, Jefferson (but not including property that fronts Jefferson) and 13th.
  • Chambers Special Area Zone/R-2 Subarea (“S-C/R-2”): “R-2” subarea is bordered roughly by Chambers, W. 8th, 13th, and Polk.

The new regulations require that for every “detached, single-family dwelling,” the City must allow an “accessory dwelling,” subject to “reasonable regulations related to siting and design.” Based on decisions in legal challenges by the Home Builders of Lane County, the following rules apply:

  • An “accessory dwelling” is just about any form of second dwelling, including an interior, attached or detached dwelling.
  • Minimum lot size and/or maximum density standards cannot differentiate in a way that would allow a detached,
    single-family dwelling, but would prohibit an accessory dwelling on the same lot.
  • Additional off-street parking cannot be required for an accessory dwelling.

Eugene-Springfield Metro Plan Residential Density Designations (City zoning standards must not conflict.)

  • Low Density Residential (“LDR”): Up to 14.28 dwelling units per net acre
  • Medium Density Residential (“MDR”): Over 14.28 up to 28.56 dwelling units per net acre
  • High Density Residential (“HDR”): Over 28.56 dwelling units per net acre

The areas encompassed by the S-JW Zone and the S-C/R-2 subarea are designated LDR and MDR. None of the area is HDR.

Comparative density allowed by current standards, JWN proposed standards, and Planning Division staff proposal

  • Current density allowed in S-JW Zone and the “R-2” subarea of the S-C Zone: 15 to 19 dwelling units per net acre – MDR
  • Density that would be allowed by JWN proposed standards: 17 to 22 dwelling units per net acre – MDR
  • Density that would be allowed by Planning Division staff proposed standards: 29 to 38 dwelling units per net acre – HDR

The JWN has proposed the following code amendments to comply with the State regulations and the Eugene-Springfield Metro Plan residential density designations. The detailed markup for the code amendments is available at:

https://trusttheneighbors.files.wordpress.com/2021/05/jwn_proposed_s_sw_adu_code_amendments_17may2021.pdf

(A) Use the broadest definition of “accessory dwelling”

On all lots in the special area zones simply allow a second dwelling for each detached, single-family dwelling. There is no special distinction of an “accessory dwelling.” This is the current standard for these special area zones and allows more flexibility than the “accessory dwelling” standards in the R-1 Zone (the city’s prevalent “single-family” residential zone).

(B) Remove off-street parking requirement for accessory dwellings and remove the current on-street parking credit
for all dwellings

The current special area zone parking requirements allow available curbside, on-street parking to be counted towards overall parking requirements. In most situations, this credit allows a second dwelling without additional off-street parking.

The current “parking credit” should be removed to balance the mandated removal of any parking requirement for second dwellings. This is not a perfect “net zero” approach, but it’s simple, reasonable and complies with the new State laws. The result will be comparable to the parking standards that apply in Eugene’s R-1 Zone.

(C) Allow a second dwelling on non-standard lots and remove the current provision that allows dividing an existing lot to create a new non-standard lot

The current special area zone lot standards allow an existing lot to be divided into two smaller lots, one of which can be “non-standard” – either half the size of a standard lot and/or accessible only from an alley. The purpose of this progressive standard was to allow small, more affordable lots but limit them to a single dwelling, which would also be more affordable for new homeowners or renters in the JWN neighborhood.

State law now dictates that the JWN’s special area zones allow a second dwelling, even on extremely tiny lots and even on lots with no street access and no off-street parking. This would be unsustainable if standard lots could be divided and up to four total dwellings thereby allowed within the boundaries of the original lot.

Unfortunately, the only sustainable response is to no longer permit standard lots to be divide to create new non-standard lots, at least until the legislature fixes the State law. The result will be comparable to the current lot standards that apply in Eugene’s R-1 Zone.

(D) Allow only interior or attached accessory dwellings on non-standard lots

As explained above, State law now dictates that two dwellings be allowed on non-standard lots. To mitigate the significant potential impacts on sustainability and livability, the JWN proposal would limit the second dwellings to interior or attached dwellings, and not allow detached second dwellings.

(E) Maintain the already compliant allowance for two dwellings on most standard lots

The current special area zone standards already allow two dwellings on most standard lots, i.e. lots that are between 4,500 and 8,999 square feet. Legal decisions have confirmed that this standard complies with the new State laws. Other than some wording changes, this standard would remain the same.

(F) Revise the calculation of allowable dwellings on “large” standard lots that are 9,000 square feet or more

The current special area zone standards have a simple calculation for the number of dwellings allowed on larger lots – one dwelling per 4,500 square feet. This obviously allows three (or other odd numbers of) dwellings on larger lots, which would potentially conflict with the State requirements.

The solution is unavoidably more complex and essentially comprises two components: Allow “pairs” of dwellings based on lot sizes, and allow compliant development of odd numbers with “plexes.” e.g., a triplex. The “net” is slightly different than the current approach but maintains a relatively equivalent allowance for the number of dwellings allowed on larger lots.

(G) Revise the terminology used for additional standards for the number and configuration of dwellings allowed on a lot

The current S-JW Zone has a sophisticated set of standards that take into account the total number of bedrooms in determining the number of dwellings allowed on a lot. Based on city staff preferences at the time the S-JW Zone was adopted, the current approach translates the calculation into a “density” metric.

To avoid any question of compliance with State law, this approach has been rewritten in a more direct manner. The revised version also takes into account that a second dwelling would be allowed on a non-standard lot. Here again, the “net” is slightly different than the current approach but maintains a relatively equivalent allowance for the number and configuration of dwellings allowed on larger lots.

Summary

The JWN Executive Board has carefully developed a proposed set of amendments to the JWN’s two ground-breaking special area zones, which have allowed accessory dwellings for more than a decade before the State adopted a “one-size-fits-all” dictate. The proposed amendments fully-comply with State law, provide clear-and-objective standards, and are consistent with the purposes and findings that the City Council unanimously adopted when the special are zones were approved.

Get involved! Take the survey at: Stay tuned…

You can let the JWN Executive Board know your opinion about each of the proposed changes above, as well as provide opinions and suggestions on any aspect of future residential development in your neighborhood.

 

Second Phase: HB 2001