Revised Final Order of Planning Commission on Remand from LUBA

Eugene Planning Commission December 11, 2013 Page 2 Attachment A findings explaining (1) why those policies are or are not mandatory approval criteria, and (2) whether the policies require any additional consideration even if they are not mandatory approval criteria. If the Planning Commission determines that consideration of those policies is not required, the Planning Commission could also choose to make alternative findings that, even though consideration of the policies is not required, approval of the PUD is nonetheless consistent with those policies. 2. Exaction Primer In order to approve any proposed development, the local decision maker must be able to point to sufficient evidence and rationale demonstrating that each and every approval criterion is satisfied. If an approval criterion is not or cannot be satisfied, then the application should be denied. Sometimes a particular approval criterion can be satisfied, but only if a condition of approval is imposed. Where that condition of approval is the requirement that an applicant or property owner dedicate land for public use, the local goverment must make constitutional findings justifying the exaction (often referred to as Dolan findings). The findings must demonstrate, first, that there is a legitimate state interest justifying the imposition of the exaction. Second, the local goverment must demonstrate that there is a nexus between the permit condition and a legitimate state interest. I.e., the condition being imposed actually serves or furthers the valid public purpose. Finally, the local goverment must demonstrate that the exaction and the anticipated impact of the proposed development are "roughly proportionate." For instance, a local goverment cannot require a developer of a duplex to construct a new three-lane highway, because the condition imposed would have absolutely no relationship to the amount of traffic to be generated by the proposed development. In this case, Public Works staff provided Dolan findings on public interest, nexus and rough proportionality justifying the dedications that the City was requiring of the applicant. The findings are very formulaic. They identify the public interest in having a 45-foot right of way dedication (PW Referral Comment at 2), the necessary nexus between the required dedication and the public interest (PW Referral Comment at 3, first full paragraph), and explain how the dedication is roughly proportional to the anticipated impacts of the proposed development (PW Referral Comment at 3, second paragraph). A similar analysis is done for the pedestrian and bicycle dedication (PW Referral Comment at 4). The Hearings Official and the applicant point out that the Dolan findings do not state that the roadway will be unsafe unless it is improved now; rather, they state that safe vehicular, bicycle, pedestrian and emergency access will be at risk in the future without the required dedication. The findings point out that this is the last opportunity the City will have to require the dedication needed for any future street construction. Further, the Dolan findings do not even attempt to justify requiring that the applicant actually construct or improve the road, only that the applicant dedicate portions of its land for a public right-of-way. Had the applicant been required to improve Oakleigh Lane, the City would have needed to provide similar findings justifying that requirement. Cityof Eugene . 125 E- Sth Ave. • Eugene, OR 97401 • 5)4~-682-$447 • 541-682-5414 Fax www.eugene-or.gov (00108854;1 )