Applicant Final Argument - Laserfiche WebLink

Eugene Hearing Official November 23, 2015 Page 12 objective standards, it is possible to develop it under the General Standards discretionary track. This is the "take your chances" option mentioned by the City Attorney. It does not comply with the statute. The City Attorney, and the City Staff, assert that it is OK under the statute to have a "General Track" with discretionary standards and a "Needed Housing Track" with clear and objective standards that prevent development. That situation gives an owner, who is entitled to protections of the statute, a choice between the discretionary track or not developing at all. That forces the discretionary standards on the owner who wants to develop. This is contrary to the statute. As is plain on the face of the statute, and as explained in Group B, the City may only apply a discretionary track if the owner has the option of getting development approval under a set of clear and objective standards. Group B at 13 ("Because the city has identified no clear and objective approval process for needed housing on Tract B that an applicant could choose, the city cannot rely on ORS 197.307(6) to authorize imposition of the subjective standards for modifying the DDP [Detailed Development Plan] at LDC 2.5.40.04." Because the City may not force a developer of needed housing into the discretionary track, it follows that the City may not apply a standard under the clear and objective track that it is impossible for the owner to meet. That is the 19 Lot Rule, as the City reads it. The applicant requests the Hearing Official to hold that the City may not apply the 19 Lot Rule to this application because it would prohibit development. It is a clear and objective standard that prevents development, rather than one that allows development. As we explained in our hearing letter, LUBA struck down one standard in the new 2001 code that was clear and objective but was so stringent as to preclude all development. There the Home Builders challenged a stormwater discharge standard that was clear and objective but was so stringent that no development proposal could meet it. LUBA struck it down as a prohibition on development under the guise of a clear and objective standard. LUBA said: "2. Stormwater Runoff In section ILA.2.u, we held that LUCU 9.8325(10) imposes a clear and objective requirement that stormwater runoff from a PUD will not "create negative impacts on natural drainage courses" such as erosion, turbidity or sediment transport, "due to increased peak flows or velocity." We agreed with the city that, while LUCU 9.8325(10) may be difficult to meet, its prohibition on negative impacts of the specified type is clear and objective. Petitioners argue that, even if LUCU 9.8325(10) is clear and objective, it nonetheless offends the needed housing statute, because it is so difficult to meet that it effectively forces needed housing applicants to opt for the alternative, discretionary track. [FN36] Petitioners submit that rain falls on all development, and all water moving across ground carries some sediment, creates some turbidity, and has some erosional