2 <br />3 <br />4 <br />5 <br />6 <br />7 <br />8 <br />9 <br />10 <br />11 <br />12 <br />13 <br />14 <br />15 <br />16 <br />17 <br />18 <br />19 <br />20 <br />21 <br />22 <br />23 <br />24 <br />25 <br />CITY OF EUGENE 6 <br />CITY ATTORNEY'S <br />OFFICE <br />125 E. a Avenue <br />Eugene, OR 97401 <br />Phone(541)662-8447 <br />Fax(541)682-5414 <br />I <br />"EC 9.2751(1)(c) sets forth areas that must be excluded from the net <br />density calculation. Those exclusions include, `public and private <br />streets and alleys, public parks, and other public facilities.' The <br />neighbors assert that easements that might accommodate public <br />facilities like water and sewer lines must be excluded. The applicant <br />argues that easements are not the same as `public facilities' and are <br />not required to be excluded. <br />"The Hearings Official agrees with the applicant. EC 9.275 1 (1)(c)(1) <br />uses the specific language `public facilities.' The provision does not <br />include the word `easements.' If the provision was intended to <br />exclude easements it would, so state. Adding that concept to the <br />provision would violate ORS 174.010. Public facilities are not <br />defined in EC 9.0500. However, `public facility projects' are defined <br />in the Metro Plan. Those definitions contemplate above ground <br />physical structures such as water reservoirs, pump stations, and <br />drainage or detention ponds. The Hearings Official has not been <br />directed to information in the record that would necessitate removing <br />the land area associated with easements where the infrastructure that <br />utilizes the easement is below ground. Therefore, none of the <br />easements identified by the opponents must be excluded from the net <br />density calculation - including the sewer easement on the eastern <br />boundary. <br />"Similarly, the garbage and emergency turn around does not become a <br />public facility simply because it might be used by public entities <br />periodically. Those areas do not reasonably fall into the category of <br />`public facilities."' Rec. 55.17 <br />Petitioners challenge the Hearings Official's interpretation and offer <br />up what they allege is a "more reasonable" alternate interpretation <br />Petitioners' Opening Brief 16-17. They assert that, under their <br />interpretation, an easement area for underground piping should be <br />17 The Hearings Official also found the garbage and emergency turnaround is <br />not a public facility and need not be counted. Rec. 55. Petitioners do not <br />specifically challenge those findings, Petitioners only challenge the City's <br />determination with regard to the water line and sewer easements. <br />Page 26 - BRIEF OF RESPONDENT <br />