Applicant Final Argument - Laserfiche WebLink

Eugene Hearing Official November 23, 2015 Page 17 It is most appropriate to apply the "unreasonable cost or delay" clause of the statute in an "as applied" challenge to a code provision, as here. Indeed, in Home Builders LUBA explained that the applicability of this clause (then codified at ORS 197.307(6)) will be most apparent in an as applied context. ORS 197.307(6) prohibits standards, conditions or procedures for approval that, either in themselves or cumulatively, discourage needed housing "through unreasonable cost or delay." The statute does not prohibit reasonable cost or delay. In our view, the question of whether approval standards or procedures discourage needed housing through unreasonable cost or delay cannot, in most cases, be resolved in the abstract, in a challenge to a legislative decision that adopts such standards or procedures. In the absence of actual application of standards or procedures in a particular case, it is difficult to see how any party could demonstrate what the delay or additional cost might be, whether that delay or cost is reasonable or unreasonable, and whether that delay or cost discourages needed housing, either alone or in combination with other standards or procedures. Because different sets of standards and procedures will apply to different applications in different areas of the city, demonstrating in the abstract that standards or procedures cumulatively discourage needed housing is rendered even more difficult. These difficulties are apparent in the present case, because the petitions for review make no attempt to demonstrate why any standards or procedures, alone or cumulatively, result in unreasonable cost or delay, much less what those costs or delays might be. While petitioners argue that certain standards or procedures are likely to increase cost or delay, they make no effort to demonstrate that such increased cost or delay is unreasonable, alone or cumulatively. With the possible exception discussed below, we believe it is highly unlikely that such a demonstration can be made or, if made, reviewed in a meaningful manner, except in the context of an "as-applied" challenge. [Home Builders at 422-423]. In Home Builders LUBA went on to strike down, as contrary to the statute, a code provision that required geotechnical information to be filed with an application when there was no standard relating to that information. That provision was facially contrary to the statute. That provision, while clear and objective, was facially contrary to the needed housing statute. The city's statewide Goal 7 (Areas Subject to Natural Disasters and Hazards) findings discuss the geotechnical analysis requirement at LUCU 9.6710, and suggest that "development must occur in accordance with the analysis' recommendations." Record 496. However, the city does not identify any standard that imposes that requirement, or that relies on the required geotechnical analysis in any way. As far as we can tell, the geotechnical analysis requirement functions only to supply the city with potentially expensive information that has no bearing on any approval standard. Consequently, we agree with petitioners that the requirement violates ORS 197.307(6). [41 Or LUBA at 423-424]