Fortunately, a friend notified me of the Public Notice in the Friday, Oct. 15 News-Times; it was not in the Oct. 13 News-Times, so there is only a short period of time to prepare comments. The City did not notify me about this Hearing nor has the City responded (as of Nov. 22) to my letter of Sept. 29. The afternoon of Oct. 15, I bought a copy of the paper and read the Public Notice and visited the Newport Planning Department late in the afternoon to view the "Application Materials and Application Criteria." The staff person was helpful and, upon my request, made a copy of the material for me (cost 25 cents/copy; total of $4.25).
Below is my transcription of part of the 30 September 2004 "Type I Conditional Use Permit Application" letter by Satre Associates, P.C., Planners, Landscape Architects & Environmental Specialists; 132 East Broadway, Suite 536; Eugene, Oregon 97401; (541) 465-4721; Fax (541) 465-4722; 1-800-662-7094. The letter has 9 pages and 8 pages of attachments or maps. I do not have the resources to scan the entire letter and put it on the Internet or to fax it. But I have transcribed material that I felt was of particular relevance.
There is also a separate 1 page "City of Newport Land Use Application."
Below are the portions that I have transcribed.
From p. 2--all of "I. Land Use Request":
"The City of Newport, in cooperation with the Port of Newport, proposes construction of a 46,500 square foot Exposition and Event Center (Expo/Event Center) located in the South Beach area of Newport. This area is currently zoned W-2. The facility is proposed as a flexible multiple-use space utilized for exhibitions, trade shows, meetings, conferences, and banquet/reception events. The Newport Seafood and Wine Festival, the largest annual tourist event in the area, will be a likely future user of the Expo/Event Center. Envisioned as a destination tourist attraction for a variety of regional and national meetings and events, the Expo/Event Center is intended to become a symbol of the City of Newport and its cultural resources for generations to come [boldface added]."The Expo/Event Center will feature a main exhibit hall, four meeting rooms, a flexible pre-function lobby space, a full commercial kitchen and food service facility and Expo/Event Center offices when opened in January 2006. In addition, the applicant is proposing a large outside area adjacent to the building's northeast side suitable for supporting an expansion tent for special events. The Area and tent will be used as extensions of the Expo/Event Center's interior space on limited occasions and for limited duration. The facility will be managed by Compass Management Facilities, a third party management organization. Like many facilities of this type, the Expo/Event Center will typically be available for events between the hours of 8:00 am and 7:00 pm. On occasion, event setup and breakdown activities may occur prior to 8:00 am and after 6:00 pm. Except for major cultural celebrations like the Seafood and Wine Festival, attendance at events is anticipated to range from 20-3,000 persons [boldface added].
"This Conditional Use Permit is being requested because the proposed use is conditionally permitted in the W-2 zone. Approval of this request will permit the Expo/Event Center and associated parking and landscape areas. This CUP [Conditional Use Permit] does not apply to uses or activities on lands otherwise controlled by the Port of Newport and not related to the new Expo/Event Center [boldface added].
From p. 5-7--excerpts of "III. Supporting Facts and Findings":
"This section is organized by the applicable approval criteria in Section 2-5-3.015(A) of the Newport Zoning Ordinance (NZO). Applicable approval criteria are outlined in italics [boldface here] below, followed by proposed findings of fact in normal text."Approval Criteria
"In accordance with NZO 2-5-3.015(A), the Planning Commission shall approve, approve with conditions, or deny the proposed Conditional Use Permit based on the criteria of approval in subsections (1) through (4). The criteria of approval are listed below in italics [boldface here] with findings following each.
"NZO 2-5-3.015(A)(1): The public facilities can adequately accommodate the proposed use.
"Findings
"The site is located in an area of existing development that is served by a full range of public facilities and services. Specific public facilities and services are discussed further below.
[Comment. I have not transcribed sections below on: Water, Sanitary Sewer, Storm Water, and Power because I have no knowledge about these issues with respect to the proposed Expo/Event Center. But I include all of the sections about "Transportation" and "Fire and Emergency Services."]
"Transportation: The primary vehicular access to the site from Highway 101 will be from Ferry Slip Road. Additionally, SE Marine Science Drive provides direct access to the existing parking area. Both Ferry Slip Road and SE Marine Science Drive are currently sized and constructed to accommodate the expected traffic generated by the facility [boldface added]. In addition, water taxis from the Bay Front are planned to serve the site for special events, thereby reducing the impact on the existing street network and reducing the overall need for parking at the facility. The applicant is also considering a bus loop system connecting area hotels that could be utilized during larger events such as the Newport Sea Food and Wine Festival."
[Comments. Where are the traffic flow studies or evidence to support the statement that the current situation is adequate for present needs, let alone with the addition of the proposed Expo/Event Center? I think the bus loop already occurs for the Sea Food and Wine Festival, and there continues to be congestion. The City needs a South Beach Master Plan that it admits it does not have to cover traffic congestion, emergency services and supplies in case the Yaquina Bay Bridge fails, and earthquake and tsunami hazards at the South Beach Peninsula--see "traffic congestion".]
"Fire and Emergency Service: Primary and secondary emergency vehicle access is directly available to the site via the existing public street system. As noted above, there is adequate water pressure to serve the fire flow needs of the proposed building. According to the project engineer, the 12-inch main has a residual pressure of 70 psi at 1,061 GPM measured near the Marine Science Center and the 6-inch main has a residual pressure of 64 psi at 1,278 GPM measured near the brewery. An existing hydrant is located on the southeast corner of SE Marine Science Drive and Ferry Slip Road. A second hydrant is located roughly 100 feet north of the proposed building. The applicant proposes installation of one additional hydrant the location of which has been coordinated with the City of Newport Fire Marshall. The building hydrant and fire sprinkler systems will be served by a dedicated fire supply service via a service branch located near the building. Based on existing transportation and water facility availability, the proposed use can be properly served by public emergency services."
[Comment: not mentioned at all is the possible failure of the Yaquina Bay Bridge during a "moderate" earthquake, so that South Beach would be isolated and emergency service and supplies would not be available. Require a condition that City stores and maintains emergency supplies adequate for 4,000 people to survive for at least two days on high ground accessible to proposed Expo/Event Center?]
From p. 7-8--excerpts of "NZO 2-5-3.015(A)(2)":
"NZO 2-5-3.015(A)(2): The request complies with any special requirements of the underlying or overlay zone."Findings
[I have not transcribed the opening paragraph dealing with "historic, unique or scenic" qualities of the area.]
"NZO 2-4-6.015. General Provisions (Flood Hazard Area)"As noted earlier in this report, site elevations vary between 5 and 20 feet above sea level and the development area has an approximate slope of 2 percent to the northwest. The development area is located outside the 100-year flood plain (according to Flood Insurance Rate Maps) in Zone C--"Areas of Minimal Flooding." Given that the building will be located outside the 100-year flood plain, this standard is met.
[Comment: I do not know if these statements are accurate.]
"Tsunami Requirements"The development site is located within a "Tsunami Inundation Zone" (TIZ) as defined by the State Department of Geology and Mineral Industries (DOGAMI). In accordance with ORS 455.446, the Expo/Event Center, as an exempted "special occupancy structure," is permitted construction within the TIZ. The applicant notes that Oregon Emergency Management has mapped the subject area and evacuation routes and locations of high ground have been identified for the area. Existing evacuation route signage already exists in the South Beach area and DOGAMI staff confirmed that no additional site specific signage, horns or sirens are required [boldface added]."
[Comments. Earthquake hazards are not mentioned at all. The current signage about tsunamis is most visible to those who put up the signs--I am going to try to map their location, but I do not think visitors to the proposed Expo/Event Center would see the warning signs, and I have not seen any signs in that area that would tell visitors where to evacuate to. If this building is to be constructed, special site preparation and building techniques should be included as conditions to mitigate the risk of tsunamis and earthquakes; see "Designing for Tsunamis: Seven Principles for Planning and Designing for Tsunami Hazards."]
From p. 8--"NZO 2-5-3.015(A)(3): The proposed use does not have an adverse impact, or impacts can be ameliorated through conditions."
[I have not transcribed their comments that noise, glare, odors, or design of the Expo/Event Center will not have adverse impacts.]
From p. 9--"NZO 2-5-3.015(A)(4): The proposed use is consistent with the overall development character of the neighborhood with regard to building size, height, color, material and form."
[Comment. I have not transcribed their comments that the development will fit into the area.]
[The following was included in the Public Notices on p. A6 of 15 October 2004 Newport News-Times, but was not available in their online edition, so I have typed it. It was not in the Oct. 13 News-Times.]
CITY OF NEWPORT NOTICE OF A PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the Planning Commission of the City of Newport, Oregon, will hold a public hearing to consider approval of the following Type I Conditional Use Permit:
Applicant: City of Newport (Newport Dev. Commission)(Dennis Bartoldus & Satre Associates, PC, authorized representatives); File No. 7-CUP-04.
Request: The request is for the approval of a conditional use permit for the Newport Exposition and Event Center on approximately 3.9 acres in the W-2/"Water-related" zoning district as provided by Section 2-2-1.040 (18) of the Newport Zoning Ordinance (No. 1308, as amended).
Location: The proposed Newport Exposition an Event Center would be located on a portion of Tax Lot 0111 and on Tax Lot 00296 of the Assessor's Map 11-11-17 (SE Marine Science Dr.), between the Rogue Brewery building and the Serven Marine building. See attached map.
Applicable Criteria: Conditional Use Permit; Newport Zoning Ordinance (No. 1308, as amended) Section 2-5-3.015(A);
1) the public facilities can adequately accommodate the proposed use;
2) the request complies with any special requirements of the underlying or overlay zone;
3) the proposed use does not have an adverse impact, or impacts can be ameliorated through conditions;
and 4) the proposed use is consistent with the overall development character of the neighborhood with regard to building size, height, color, material, and form.
Testimony: Testimony and evidence must be directed toward the criteria described above or other criteria in the Comprehensive Plan and its implementing ordinances which the person believes to apply to the decision; failure to raise an issue with sufficient specificity to afford the city and the parties an opportunity to respond to that issue precludes an appeal based on that issue; submit testimony in written or oral form; oral testimony and written testimony will be taken during the course of the public hearing; letters sent to the Community Development (Planning) Department (address under "Reports") must be received by 5:00 p.m. the day of the hearing to be included as part of the hearing or must be personally presented during testimony at the public hearing.
Reports: The staff report may be reviewed or a copy purchased at the Newport Community Development (Planning) Department, City Hall, 169 S.W. Coast Hwy, Newport, Oregon, 97365 seven days prior to the hearing; the application materials and the application criteria are available for inspection at no cost or copies may be purchased for reasonable cost at this address. The hearing will generally include a report by staff, testimony (both oral and/or written) from those in favor or opposed to the application, rebuttal by the applicant and questions and deliberation by the Planning Commission.
Contact: James Bassingthwaite, Community Development Director, (541) 574-0626 (address above).
Time/Place Of Hearing: Monday, October 25, 2004; 7:30 p.m.; City Hall Council Chambers (address above).
O-15 (85-15).
Public Notice of the Hearing and Annotated Transcription of Portions of the Conditional Use Permit (File No. 7-CUP-04).
It is important to recognize that this hearing was not to debate the wisdom of whether the Newport Exposition and Event Center Center should be built at the South Beach site, but whether the application fulfilled the specific legal criteria required to approve a Conditional Use Permit (CUP).
The 29 October 2004 newspaper account of the Hearing is, in my opinion, a fair, albeit much condensed, report of the Hearing.
Below is a synopsis of the Oct. 25 Hearing.
In his instructions to the Planning Commissioners at the start of the Oct. 25 hearing, the Community Development Director, James Bassingthwaite, told the Planning Commissioners that earthquake and tsunami hazards were building issues and not land-use issues relevant to the CUP (29 October 2004 article). This was not stated in the Sept. 30 CUP application form or the Oct. 15 "Planning Staff Report" for the CUP. In the CUP application form, tsunami hazards were addressed as one of the criteria for deciding the CUP.
With Mr. Bassingthwaite's ruling, much of my 28 page letter of written testimony that I had submitted the afternoon of the Hearing became mostly irrelevant, except for the sections in which I discussed the City Comprehensive Plan's apparent noncompliance with the amended State Planning Goal 7 and with traffic congestion.
Dennis Bartoldus, an attorney, represented the CUP applicant--the City of Newport. He also noted that earthquake and tsunami concerns would be addressed under building code requirements and were not land use issues (official Oct. 25 hearing Planning Commission "Minutes" included with the CUP Case File; hereafter termed "Minutes"). He also noted that the Center would not be prohibited under Oregon Revised Statutes ("Minutes"). He also indicated that there was a "geo tech" report and a seismic study for the site ("Minutes").
Bartoldus also discussed traffic congestion issues and, according to the and the "Minutes," indicated that "there will not be any adverse impacts that cannot be ameliorated."
In response to a question from the Commissioners about tsunami and earthquake issues, Bassingthwaite is noted in the "Minutes" as indicating that:
"The OARs [Oregon Administrative Rules] specifically state that the tsunami inundation zone designation is not intended to support land use planning decisions and is not intended to be a land use regulatory procedure but a consultation process prior to the building permit submission. The building plans will address the Seismic Zone 4 building code requirements and will be reviewed by the City's commercial building plans examiner out of Eugene at the time of the submission of the building permit."
[Please note the careful distinction that is made. Earthquake issues (Seismic Zone 4) will be addressed in building codes, but tsunami issues will be addressed by consultation--it is not stated that tsunami issues will be addressed by building the Center to resist tsunamis, which is possible in "Designing for Tsunamis...".]
Then Ruben Johnson, Claire Little, Lill Patrick, and James Patrick spoke in favor of the CUP ("Minutes").
As a private citizen, Janet Webster then spoke in opposition. Her concerns were about traffic, lack of sidewalks for walkers and joggers, dredge spoils, and tsunamis, and that with increased traffic that there would be increased hazard risk for bicyclists ("Minutes" and 29 October 2004 article).
In my oral testimony as a private citizen, I also brought up the earthquake, tsunami, and traffic issues. Commissioner Kilbride and I believe at least one other Commissioner acknowledged that they had not read my letter because they had not had time, but I had followed the rules in the Public Notice, which indicated that written testimony would have been accepted even at the time of the hearing. I also brought up the Jump-Off Joe development issue in my oral testimony (29 October 2004 article), but I have since found much more information about Jump-Off Joe.
Bartoldus spoke in rebuttal to concerns ("Minutes"). With respect to tsunamis, he noted that the Event Center is not prohibited and if there is only a short notice for a tsunami that it would be coast-wide problem, not just a South Beach issue ("Minutes"). He indicated that the focus will be on evacuation and that there needs to be preparation, but not paranoia ("Minutes"). An excerpt from the 29 October 2004 article:
"Bartoldus also said, however, if there is a major earthquake or tsunami in Lincoln County, 'I might suggest that there's going to be more things for officials to consider than what's going on at the event center. There's going to be problems up and down the coast. Yes, we have to be concerned about these things, but do we need to be concerned to the point where it paralyzes us and we do nothing?' "[But Bartoldus missed the point. The point is that the proposed site has the highest earthquake risk categories for liquefaction and amplification and in a tsunami inundation zone, so it does not seem prudent to locate it there. Yes, the rest of the coast may be affected in a major earthquake, but not as much as the South Beach area. The issue is not whether the Center be built, but that it not be built at the proposed site.]
Bartoldus also said the "geo tech" report addresses earthquake liquefaction and asked the Event Center architect, Tricia Berg of WBGS Architects (Eugene) to speak ("Minutes"). She indicated that the "geo tech" report noted that 3 bore tests had been done to determine if pilings would be needed to reduce earthquake liquefaction, but that the "geo tech" report did not find that pilings would be needed ("Minutes"). Then Bartoldus refuted points in my written and oral testimony. The "Minutes" indicate that "earthquake and tsunami issues will be addressed through the building permit process and not the land use process." [Note again that he did not say the Center would be built to resist tsunamis but that the issue would be addressed during the process.]
From the "Minutes": "Bartoldus stated that the event center does not need its own emergency preparedness plan as an emergency preparedness plan is a community wide concern." [Note that Newport does not appear to have a community wide plan for earthquakes or tsunamis like other Oregon Coast communities.]
Bartoldus observed that the Oregon Department of Land Conservation and Development had not sent the City of Newport a notice required under State Planning Goal 7 that would require updating Newport's Comprehensive Zoning Plan ("Minutes").
During their oral discussion, the Commissioners discussed earthquake and tsunami hazards and had a consensus that they were not sufficient to deny the CUP. So although the City Planner did rule that these hazards were not relevant to the CUP, they were fully discussed.
Nevertheless, without having read my written testimony (I was the only one to submit written testimony), the Commissioners deliberated publicly at the end of the Hearing. They discussed traffic, earthquake, and tsunami issues and voted 5-0 to accept the CUP with the two conditions in the Oct. 15 Staff Report ("Minutes"). In my opinion, the outcome would have been the same even if earthquake and tsunami hazards would have been admissible to include in deliberation. An excerpt from the 29 October 2004 article is relevant to their decision:
"... During its deliberation on this issue, members of the planning commission felt the request did meet the four criteria needed for approval. While all agreed the tsunami and earthquake hazards needed to be addressed as well, they were comfortable that would happen during the building permit process."
Post-hearing Notes from the Case File for this Conditional Use Permit
A "geo tech" report was held up during the Hearing and discussed (e.g., see "Minutes"), but it was not mentioned in the in the Conditional Use Permit application and was not in the Conditional Use Permit Case File on Oct. 15, Oct. 18, or Nov. 12. On Nov. 12, I asked Wanda Haney of the Community Development Department about it, and she suggested that I contact their Department's Director, James Bassingthwaite, about it. I emailed him on Nov. 14 about it, and he replied that he and the City Manager had copies that I could view. When I visited Bassingthwaite's office on Nov. 17, a copy of the 8 March 2004 study was available, I read it, and Wanda made copies of some pages that I selected. If I had known of this study, it would have changed my written and oral testimony for the Oct. 25 hearing. This study is discussed elsewhere.
There were two conditions included in the 8 November 2004 Final Order for Conditional Use Permit 7-CUP-04. One of these was an eighteen month time limit, and the other is:
"The applicant shall comply with all applicable building codes, fire codes, zoning ordinance requirements, and other public health and safety regulations to ensure that the use will not be detrimental to the safety and health of persons in the neighborhood. The applicant is responsible for obtaining the necessary approvals and permits pertaining to the proposed use."
An excerpt from p. 4 (item #3) of Exhibit "A," Findings of the 8 November 2004 Final Order for Conditional Use Permit 7-CUP-04:
"Testimony provided by the applicant in relation to the proposed Expo/Event Center concerning informal discussions with the Department of Geology and Mineral Industries (DOGAMI), an upcoming formal consultation with DOGAMI, and testimony by Tricia Berg about the results of the site-specific geo-technical report in relation to the seismic issues, demonstrate that applicant is aware of the building code requirements in relation to the seismic and tsunami hazards and is complying with the applicable requirements."
This is carefully worded and does not say that the Center will be built to resist tsunamis. It states that it only will be built to comply with applicable requirements, but tsunami-resistant building preparation and design are not included in building codes.
In the Case File on 12 November 2004 for this CUP, it was noted that all City Department heads, including City Fire Chief Rick Crook [who works with disaster planning], were notified about the CUP and asked for their comments by Oct. 15. Only Lee Ritzman, City Engineer, responded, and his comments were included as Attachment C to the Oct. 15 "Planning Staff Report." In a 3 March 2001 article, Rick Crook noted that several properties in South Beach, including the OSU Hatfield Marine Science Center, Oregon Coast Aquarium, Spencer House (assisted living facility), and South Beach State Park needed to be notified first because they were low-lying and vulnerable to a tsunami.