actually applies the new zone to specs f is properties. In that circurnstarcce, <br />the second decision is almost certainly the first time that the city notifies <br />.property owners that their property is~ now subject to the new zone and its <br />. requirements, As a practical matter, then, an appeal o f the ordinance <br />that applies the new zone, to specs f f c properties is the f ~'rst reasonable <br />opportunity many affected or concerned persons affected would have to <br />raise a facial constitutional challenge to the zone. Accordingly, we decline <br />respondents' invitation to extend the reasoning in Butte Conservancy, <br />because in many cases the consequences o f that extension would be that , <br />affected persons would essentially be precluded from advancing a facial <br />challenge to the new zone, and would be limited to as-applied challenges <br />when the city ultimately applied the new zoning requirements to deny or <br />. condition proposed development." Barnes vs. City of Hillsboro, LUBA <br />2010411 at 5-9. <br />The approval of this zone change with appropriate conditions} is not a <br />_ collateral challenge to the C-2 Zone and does not prevent the approval <br />of a zone change to C-2 without conditions on other parcels that are not <br />constrained by applicable refinement plan policies. <br />The Hearings Official's claim that arguments for a condition in this <br />particular zone change are. a "collateral attack" is without merit. <br />D. The Hearings Off icial improperly found that limiting C-~ uses would <br />create a new sub-zoning designation under the Eugene Code. <br />In his findings regarding a "collateral attack," the Hearings OffzciaX <br />also stated: <br />"~'he applicant questions my authority to essentially create a new sub- <br />, zoning designation under the Eugene ~Cvde f ar the subject property, ~ , <br />agree with the applicant." decision at 6. <br />The Hearings Off icial provided no explanation f or how approving a <br />zone char e with conditions to a specific parcel would be a de facto g <br />amendment of the Eugene Code, <br />LUBA ruled on a similar challenge regarding a zone change approved <br />with a condition: <br />"We do not think that the condition is a de facto amendment of the ECC. <br />While the condition imposes an additional burden an intervenor, by <br />requiring that intervenor demonstrate that the proposal complies with the <br />~P~ at the PAD phase, it does not eliminate other EC provisions <br />regarding transportation impacts ar amend the provisions of the EC to <br />include compliance with the ~'P.l~ for all applicants. "Willamette Oaks vs, <br />City of Eugene LUBA No. ,2008-173 at 10. <br />Appeal Statement Z 113 12 August 16, 2011 <br />. PC Agenda -Page 21 <br />I <br />