THE "RED HERRING" IN THE ROOM <br />The Deputy City Attorney has thrown a "red herring" into the metaphorical room. <br />In her August 12, 2015 memo to the Planning Commission, Davies advised commissioners that: <br />"[A]ny of the paved portion of Oakleigh Lane that lies outside the right of way that has existed <br />for 10 years or more will be considered to have been acquired by the City as a prescriptive <br />easement." (Emphasis added.) <br />Ironically, the law firm engaged by OMC published a 2007 document "Law of Easements: Legal <br />Issues and Practical Considerations" that contradicts Davies' statement: <br />"A prescriptive easement requires that the claimant establish by clear and convincing <br />evidence that his use was: 1) for the prescriptive period (10 years under ORS 12.050); 2) <br />open, notorious, and adverse to the rights of the servient owner; and 3) continuous and <br />uninterrupted according to the nature of the use." (See attachment G, incorporated <br />herein.) <br />Planning commissioners must base approval of development applications on verifiable facts; <br />and the City's right to a prescriptive easement is uncertain at best. <br />Any such claim that the paving that currently lies on private property is ensured to remain <br />available for public use cannot be relied upon because there is no basis for concluding that this <br />would be certain as a matter of law. <br />The only lawful way that the Planning Commission may take hypothetical future actions, such <br />as a "prescriptive easement," into account is in determining feasibility. In this case, it is just as <br />"feasible," as a matter of law, that the property owners on which the pavement lies may legally <br />remove the pavement and prohibit trespass by vehicles.3 <br />The eventual outcome regarding the status of the pavement that now lies on private property is <br />uncertain, period. (See the August 13, 2015 e-mail from William Kabeiseman to Anne Davies, in <br />Attachment H, incorporated herein. See also the August 25, 2015 letter from Lauren Regan to <br />the City Manager, Attachment I, incorporated herein.) <br />OBSTRUCTION OF EMERGENCY VEHICLES, IF NOT JUSTICE <br />Further, there is no evidence in the record that the essential condition in the Public Works <br />report that "Oakleigh Lane remain unobstructed by parked vehicles" can be met, and both the <br />City and County have declined to even provide assurance that they would attempt to prohibit <br />parking in the right-of way. Note that the only evidence in the record addressing the legality of <br />such parking reliably establishes that such parking is considered legal by the Eugene City <br />Parking Enforcement staff person. (See page 1 of e-mail thread in Attachment F.) <br />There are two defensible alternatives available to the Planning Commission: <br />It bears noting that the survey in Attachment B notes that "The public may have a prescriptive easement <br />for the continued use of that area." The only easements that actually exist are those depicted in the wider <br />portions of the right-of-way. If the City actually had any prescriptive easements, those would have been <br />reflected on the survey. The City does not have any prescriptive easements in this area. <br />Trautman Appeal Testimony PDT 13-1 Page 6 August 31, 2015 <br />31 <br />