31 <br />(ii) EC 9.8320(6). <br />EC 9.8320(6) provides an additional backstop to the requirements in EC <br />9.8320(5). LUBA's Opinion, on ER p 29, misstates the requirements of that <br />provision as follows: <br />"as relevant here, EC 9.8320(6) requires the city to find that `the <br />PUD will not be a significant risk to public health and safety <br />or an impediment to emergency response."' ER p 29. <br />That is not what the code provision requires. EC 9.9320(6) provides as follows: <br />"(6) The PUD will not be a significant risk to public health and <br />safety, including but not limited to soil erosion, slope failure, <br />stormwater or flood hazard, or an impediment to emergency <br />response." (Emphasis added.) <br />EC 9.8320(6) is an all-encompassing requirement to maintain safety for the <br />PUD; not just for its residents, but for the benefit of the public's "health and <br />safety." The provision is not limited solely to the elements identified in the <br />The proper way to evaluate this issue was demonstrated in the recent case of <br />Butte Conservancy v. City of Gresham, 52 Or LUBA 550 (2006). Once a city <br />determines that a proposed development requires infrastructure improvements, <br />the city had a choice - it may approve it with conditions requiring those <br />improvements or it may deny the applications. If the improvements cannot <br />constitutionally be imposed, the City cannot simply shift the impacts of the <br />development onto the neighbors and future residents. If the development cannot <br />be safely developed without imposing unconstitutional conditions, the City <br />should have rejected the application rather than finding a different standard for <br />a different section of the same local street that is subject to the same safety <br />concerns. <br />OCTOBER 2014 <br />