Eugene Hearing Official <br />November 23, 2015 <br />Page 13 <br />component, no matter how minute, and therefore no PUD could possibly comply <br />with LUCU 9.8325(10). <br />"We agree with petitioners, at least in the abstract, that imposing a clear <br />and objective standard that is impossible or virtually impossible to meet is a <br />prohibition in the guise of a standard. ORS 197.307(3)(d) allows the city to offer a <br />discretionary approval track, "provided the applicant retains the option of <br />proceeding under the clear and objective standards[.]" That option is illusory if <br />the clear and objective standards are impossible to satisfy. It may not be the case <br />that LUCU 9.8325(10) is impossible to satisfy. However, the city provides no <br />assistance on this point, or indeed any response to this subassignment of error at <br />all. Accordingly, we sustain this subassignment of error." [Home Builders at 419] <br />The Hearing Official should adopt this same rationale. In this situation, as applied, the 19 Lot <br />Rule is a prohibition on development in the guise of a clear and objective standard. <br />The City Attorney responds to this argument at page 5 of her memorandum. She reframes the <br />applicant's position. The reframe is not correct. The applicant's position is this: An applicant <br />who invokes the clear and objective standards track to develop property that is on the BLI may <br />not be denied based on a clear and objective standard that is impossible to meet for that site; <br />such as standard may not be applied because it is a prohibition in the guise of a standard, as <br />L UBA explained in Home Builders. <br />a. The applicant is not saying that all needed housing applications are entitled to an <br />approval. <br />Page 5 Part A of the City Attorney memorandum creates a straw person. She mischaracterizes <br />the applicant's position as asserting that any needed housing application is entitled to an <br />approval. Not so. Any needed housing application is entitled to an approval if it meets the <br />standards that are clear and objective and are possible to meet. Here there is one that, under the <br />city's approach, is impossible to meet at this site simply because other properties in the area are <br />already developed. <br />Under the city's theory, the City could force all needed housing applicants into the discretionary <br />track by adopting a clear and objective standard that is not possible to meet because the offensive <br />standard exists only under the needed housing track. LUBA found one such standard in the <br />Home Builders facial challenge to the current ordinance adopted in 2001 - the stormwater <br />standard discussed above. That standard was impossible for anyone to meet; so it did not pass <br />muster under the statute. The City was required to remove it from the code. There is no material <br />difference between the stormwater prohibition struck down in Home Builders and the 19 Lot <br />Rule, which is a prohibition for this site. <br />The gist of the city position appears in the last paragraph on page 5: "In Eugene, where an <br />applicant cannot comply with a clear and objective approval criterion, it can take its chances and <br />