While the Bend City Council ultimately upheld the approval which enables OSU-Cascades to move forward with the 10 acre site, it did also thoughtfully consider the nature of its code requirements, resident concerns and OSU-Cascade’s efforts and suggestions and crafted conditions of approval to address potential impacts of the site in the area.
By Ellen Grover | Karnopp Petersen LLP
On October 15, 2014 the Bend City Council issued its decision upholding approval of OSU-Cascade’s 10 acre site plan application for its proposed campus expansion. The Council’s decision addressed three different issues—master planning, parking and traffic—that directly relate to off-site impacts of the development that appeared to be of highest concern to area residents. While the City Council ultimately upheld the approval which enables OSU-Cascades to move forward with the 10 acre site, it did also thoughtfully consider the nature of its code requirements, resident concerns and OSU-Cascade’s efforts and suggestions and crafted conditions of approval to address potential impacts of the site in the area. Recognizing that all development has impacts and that its role in managing developer decisions and goals is limited, the City cannot eliminate all impacts, but the Council did work to identify some safeguards to reduce or mitigate potential impacts. Below is a brief summary of the issues and resolution.
1. Master Plan. The issue before the City Council was whether the University was required to “master plan” the 10 acre site with an adjacent 45 acre site not owned by the University but about which the University engaged the community in a phased development visioning exercise. The City Council’s decision does impose a master planning requirement on the University, but only at the time when doing so is required by the code and is otherwise ripe for such a review. Under the decision, the University may move forward with the 10 acre site, but a condition of approval requires master planning if they expand onto the adjacent site. Accordingly, the full site build out, if there is one at the expanded site, will be evaluated comprehensively under master planning/planned district provisions.
By way of background, opponents stated their belief that good planning dictates that the University be required to master plan their entire campus build out, namely the current 10 acre property and the adjacent 45 acre property. The University owns an option to acquire the 45 acre site, has developed conceptual development plans and sought public engagement. Opponents do not cite any specific issues that might be better addressed through the specific master planning provisions in the City Code, but simply note that the scale of the 56 acre full build out—not necessarily the 10 acre property development standing alone—requires master planning review.
The City Council’s decision disagreed that the 56 acres needed to, or could, be master planned at this time. First, the City Council clarified that master planning is not theoretical, but binding—meaning it results in new land use regulations for the property and would amend the General Plan and Development Code map. Next, the City Council pointed out that to impose such binding regulations as a result of a “quasi-judicial” proceeding—a proceeding that affects a discrete site, will result in a decision of some kind and must comply with existing criteria—must be initiated or consented to by the property owner and could not be imposed at a third party’s request. (This is in contrast to a legislative action whereby, for example, the City itself initiates a review of its zoning districts which may or may not result in changes to those zoning districts.) Last, the City Council noted that, even if it could impose master planning on adjacent property without property owner consent, it would be a dangerous precedent to in fact require it. The result would be a city-wide mandate that every application address adjacent vacant land in their proposals, whether they own it or not. This likely would not result in ordered planning, but seemingly just the opposite as it would prevent appropriate planning of parcels based on the objection of adjacent land owners or otherwise result in property owners later seeking to reverse zoning regulations that were imposed without their consent or request.
The City Council generally agreed that master planning the entire build out may in fact be preferable, but noted that such planning simply is not yet ripe. Namely, the University did not own the 45 acre property and the current owner did not consent to any city planning changes to the property. Further, the University, while expressly identifying its desire to expand onto the 45 acre property—including extensive public outreach and visioning concepts—has not determined whether it can or whether it is the most desirable option to expand on that site because it needs to complete its due diligence of the 45 acre property and other potential development opportunities. In the meantime, the University identified nearer term needs for the 10 acre site. The City Council noted that it simply could not mandate that the University change its expansion needs, due diligence reviews, and timing for the simple fact of requiring master planning.
The City Council reconciled its code requirements with its general agreement that master planning may be beneficial by requiring, as a condition of approval, that if the University were to in fact purchase the 45 acre property, it must enter into master planning or special planned district process as consistent with the code requirements prior any development on the site. Incidentally, if this were to be the case, it would seem beneficial that the public outreach being conducted by the University would inform the master planning process and application. In any event, under the Council’s decision, the full build out will be reviewed comprehensively under master planning/planned district provisions if and when the University opts to expand onto the adjacent site and has ostensibly completed its public outreach for that site.
2. Parking. The issue before the Council was whether the University was providing sufficient on-site parking for the 10 acre development, thereby minimizing or reducing potential on-street and off-site parking impacts to the surrounding neighborhoods. The City Council found that the University’s application met the “parking needs” of the campus based on the University’s professionally prepared Parking Management Plan (“PMP”). In light of the ongoing concern about potential off-site parking impacts, the City Council also imposed, at OSU-Cascade’s suggestion, implementation and monitoring conditions related to the PMP. The purpose of these conditions is to prevent impacts to the neighborhood that are uncertain to occur but could otherwise be addressed by additional on-site parking or other methods in the PMP. They require strict implementation and enforcement of the PMP and, on top of that, neighborhood monitoring to specific thresholds that trigger responses and that could eventually require additional on-site parking to be provided.
By way of background, opponents here argued that the University’s application did not meet the “parking needs” requirement of the proposed school, claiming that—while the standard clearly bases compliance on a Parking Management Plan for all uses contemplated for the entire campus—the PMP prepared by the University is too optimistic in terms of evaluating parking demand reduction and is not otherwise credible in light of evidence that opponents provided.
The site plan shows 322 parking spaces on-site as consistent with (and exceeds that required by) the PMP which was prepared by a professional traffic engineering firm, Kittelson and Associates. The PMP also establishes express parking management goals, objectives and policies that encourage reduction in single occupancy vehicles and reliance on alternative modes of transportation such as transit, walking and biking. The Plan prohibits long term overnight parking on campus, discourages on-street parking, rewards carpooling and provides easy access to facilities for other forms of commuting, such as biking, walking or taking a shuttle. A parking permit program will be used to monitor and control parking on-site, and the PMP adopts a “good neighbor” policy whereby the University will respond to calls from neighbors to investigate the potential for misuse of private parking by a campus user as well as an inclement weather program to address commuting during times of wintery weather. A no tolerance policy will implement consequences for individuals who violate the campus parking policies. The PMP will be actively monitored by University staff and incentives and parking policies will be adjusted based on performance. In addition, additional parking facilities may also be required under the PMP based on this monitoring.
The City Council disagreed with the opponents assertion that the PMP did not meet the parking needs, noting that a) the PMP was prepared by a professional traffic engineering firm; b) the PMP was consistent with the City code and policies emphasizing reduction in vehicle trips; c) the hearings officer clearly reviewed and rejected contrary evidence provided by opponents; and d) the University’s PMP was based on four separate methods for calculating parking need which validate the end result as well as on a discount of success factors related to parking demand reduction, not the opposite—meaning, there was not persuasive evidence that the PMP was overly optimistic or based on unsubstantiated methods. The City Council found that the University met its burden of proof that it met the parking needs of its entire use even when taking into account contrary evidence.
Even though the City Council found that the University met the necessary parking need criterion, it imposed two conditions of approval related to the PMP to monitor neighborhood impacts. These conditions require the University to implement the PMP including the adaptive management provisions in it as well as to specifically monitor on-street parking and at certain thresholds undertake a set of responses based on a cascading level of impact which could culminate in submitting a revised PMP for review (subject to public comment and hearing) and a requirement for construction of additional parking facilities. The conditions were suggested and agreed to by OSU Cascades in light of public concern related to potential off-site parking impacts. In other words, while the parking solutions in the PMP met the burden of proof to establish compliance with the code, the ongoing implementation of the PMP will be subject to review so as to prevent impacts to the neighborhood that are uncertain to occur but could otherwise be addressed by additional on-site parking or other methods in the PMP.
3. Transportation System/Traffic. The issue before the Council was whether the University sufficiently considered the traffic impacts of the 10 acre development, in particular whether the University can demonstrate that the transportation system has adequate capacity in light of the intersections studied, the time of year studied and the evidence of congestion related to existing school traffic. The City Council determined that the studies provided by the University showed that the transportation system has sufficient capacity. In particular, it found that the traffic studies provided met the City’s requirements and were representative of peak usage for the University and nearby school uses. The Council however also recognized that the system sustains short periods of high use around school start and release times and/or other events. In order to balance school congestion on Mt. Washington and Reed Market, the Council imposed a condition of approval on the University to proactively work with nearby schools to understand programming and events to try and avoid overwhelming the system based on simultaneously scheduled events.
By way of further discussion, opponents arguments focused on three issues of significant concern for many residents: a) that the University did not study the capacity of all appropriate intersections—particularly Reed Market road; b) that the traffic counts that were taken should be adjusted upward to account for the peak season; and c) that there is significant traffic congestion on area streets, particularly associated with existing schools near or adjacent to Mt. Washington. Taken together, opponents asserted that there are significant traffic issues within the transportation system and that the transportation facilities did not have adequate capacity to accommodate additional use that would be required by the University campus.
The City Council instead found that the University did not limit its review of intersections but met the requirement to study all required intersections. Those requirements did not involve Reed Market road. It also found that the traffic counts did not warrant any seasonal adjustments because the traffic counts were taken at a time representative of when the University site would be operating and when other school uses are operating that create known demands on the road system—i.e., in November during the school session. This study also included a supplemental study during the p.m. peak time for school release. The Council declined to adjust trip counts to the peak summer season as suggested by the opponents because the University site will not be operating at peak capacity during that time. However, the Council also recognized that the system sustains short periods of high use around school start and release times and/or other events. In order to balance school congestion, the Council imposed a condition of approval on the University to proactively work with nearby schools to understand programming and events to try and avoid overwhelming the system based on simultaneously scheduled events. Notably, this condition relates to trying to balance school congestion at not only Mt Washington but also Reed Market Road to try and address concerns there even though there is no code requirement to do so.