Applicant Final Argument - Laserfiche WebLink

Eugene Hearing Official November 23, 2015 Page 11 "The record shows that the subject property is included in the City's currently adopted Residential Land Study as buildable land. The HO correctly based compliance on the subject application being Needed Housing because it is in the buildable lands inventory (i.e. the Residential Lands Study)." 4. The 19 Lot Rule may not be applied consistent with the Needed Housing Statute if that standard can be interpreted to either allow or deny the project. As discussed in Part ILA. above, the Applicant views the 19 Lot Rule as having a plain meaning that allows this project. But if it is subject to interpretation, the discussion between staff and the applicant shows that the standard is subject to competing interpretations - one that would allow the project, and one that would deny the project. That range in the possible interpretations is just the kind of discretion that is fatal to the city's authority to apply the standard under the statute. The Group B decision turned on this very issue. There a condition on a 1981 land use approval was a standard for the new decision. The meaning of the standard was ambiguous - so ambiguous that it could be interpreted to allow or disallow the project. As a result, LUBA held that it could not be applied. A condition that requires such interpretation, to determine whether proposed needed housing is allowed at all, is not a "clear and objective" standard or condition within the meaning of ORS 197.307(4)." [Decision at 11 line 10] Because Condition 12 is ambiguous regarding whether any development (including needed housing) of Tract B is allowed at all, and is not clear and objective, the city cannot apply Condition 12 to prohibit the proposed needed housing, or as a vehicle to subject the proposal to subjective approval standards at LDC 10 2.5.40.04." [Decision at 15 line 1.] The very same rationale applies here. If the Hearing Official abandons the notion that the plain language of the standard allows the use, then he will need to choose between two competing interpretations - one that allows the use and one that prohibits the use. In that event he should find that the 19 Lot Rule may not be applied under the statute, as explained in Group B. 5. Potential escape from the 19 Lot Rule by using the General Standards track does not make the 19 Lot Rule OK under the statute. This issue is addressed in Part II of the City Attorney's memo and at page 5 of the November 12 Staff Memorandum. The City position is that if the property can't be developed under clear and