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HomeMy WebLinkAboutApplicant Final ArgumentLAW OFFICE OF BILL KLOOS PC OREGON LAND USE LAW 375 W. 4TH AVENUE, SUITE 204 EUGENE, OR 97401 TEL: 541.343.8596 WEB: WWW.LANDUSEOREGON.COM BILL KLOOS BILLKLOOS @LANDUSEOREGON. COM November 23, 2015 Eugene Hearings Official c/o Eugene Planning Director 99 West 10th Ave. Eugene, OR 97401 Re: Chamotee Trails PUD (PDT 15-1/ARA 15-13); Applicant's Final Argument Dear Mr. Helm: This is the applicant's final argument. Reference to "Exhibits" here is to exhibits previously filed by this office. Initially, we summarize the key facts related to the legal issues in this matter. Those facts relate primarily to the updated slope map for the property. Then we address several legal questions: The 19 Lot Rule: What is the correct interpretation of this code standard? We believe the plain language meaning allows development of this site because traffic is dispersed in two directions. Is this project "Needed Housing" in the meaning of the statute, such that it gets the protections of the statute? The applicant, City Attorney, and Planning Commission agree that it is. If so, may the City apply the 19 Lot Rule to deny the project? No, for two reasons. First, there is too much interpretive discretion in the 19 Lot Rule for it to be applied as a standard. As LUBA explained in its recent Group B decision, if the standard can be interpreted to either allow or not allow the use, then it may not be applied under the Needed Housing Statute. It comes off the table. Second, applying the 19 Lot Rule would force the applicant into longer, more expensive series of partitions, to which the 19 Lot Rule does not apply. Forcing the applicant to take a longer, more expensive route to get to the same place would violate the prohibition in the Needed Housing Statute against clear and objective standards that result in unreasonable cost and delay of needed housing. There is no reason apparent in the code, or suggested by staff, for why it would be reasonable to apply the 19 Lot Rule to the quicker, less costly PUD process, but Eugene Hearing Official November 23, 2015 Page 2 not to the slower, more expensive serial partition process. The Hearing Official should decline to apply the 19 Lot Rule for the same reason LUBA struck down the storm standard in the code in the Home Builders review of this code. If so, may the City apply the 30 foot landscape buffer setback to this project? No. The plain language of this standard makes it a prohibition of development in the guise of a clear and objective standard. The Hearing Official should refuse to apply this standard for the same reason LUBA struck down the stormwater standard in the Home Builders case. If the standard has to be interpreted so as not be absurd, as the staff suggests, then it is too discretionary to be applied, as explained in Home Builders. The applicant concurs with the explanation in the November 12 Staff memorandum for the reasons why Vivian Drive should not be improved or paved. 1. Summary of Key facts related to legal issues: We refer the Hearing Official to the November 12 post-hearing letter and materials from Branch Engineering. These materials included a revised contour map to correct the error flagged by Mr. Williamson. A revised site plan is also included to demonstrate how the project can be accommodated while respecting the 20% slope limitation on the revised contour map. II. Legal issues: A. The 19 Lot Rule: This project complies with the plain language of the 19 Lot Rule, which only requires dispersal, not dispersal to some unstated destination in the City. The standard is: Standard EC 9.56875(c): The street layout of the proposed PUD shall disperse motor vehicle traffic onto more than one public local street when the PUD exceeds 19 lots or when the sum of proposed PUD lots and the existing lots utilizing a local street as the single means of ingress and egress exceeds 19. Although the bulk of the argument has been about whether this standard may be applied under the Needed Housing Statute, the preliminary question is whether the application meets this standard, if it is applied according to its terms. If the answer is "yes," then we do not need to ask how the Needed Housing Statute applies to this issue. The applicant believes this proposal is consistent with standard. The starting point for the meaning of the standard is its plain text. If there is a need to interpret one then goes to the text, context, and legislative history, if available. Eugene Hearing Official November 23, 2015 Page 3 The operative term "street" is defined in the code. EC 9.0050: Street. An improved or unimproved public or private way, other than an alley, that is created to provide ingress or egress for vehicular traffic to one or more lots or parcels, excluding a private way that is created to provide ingress or egress to land in conjunction with the use of land for forestry, mining, or agricultural purposes. A "street" includes the land between right-of-way lines within the ingress/egress easement areas serving multiple residential lots but excluding "flagpole" portions of flag lots. [Emphasis added] Applying the code definition, West Amazon is a "street" in both directions from the subject property. The right of way continues to the north, on city owned right of way, and connects to the balance of the city street system, even though the right of way to the north is not yet improved beyond the city barrier a few hundred yards to the north of this site. If the Staff or others contend that the city barrier to the north and the unimproved character of the right of way beyond the barrier negate its being a "street" in the meaning of the code, that position reflects reading into the code some language that is not there. This project also meets the code requirement that the street "disperse" traffic in more than one direction. Here traffic can go north or south from the entrance to the site. Traffic can continue at least 1000 feet to the city barrier on the roads. The code is silent about how far traffic needs to be able to go in each direction in order to be "dispersed." "Disperse" is not defined in the code. That calls for turning to the dictionary. The Supreme Court favors Webster's Third New Int'1 Dictionary. Osborn v. PSRB, 325 Or 135, 146, 934 P2d 391 (1997). The Webster's definition for "disperse" is: "[T]o cause to break up and go in different ways: send or drive into different places." Being able to travel out of the project and north on West Amazon meets this definition. The definition does not say one has to be able to disperse and get to a specific distance from the site (say a mile) or to a specific location (say Springfield). The Hearing Official should find that this project is consistent with 19 Lot Rule as written. There is nothing in the legislative history that would conflict with applying the standard consistent with the dictionary definition. This provision was adopted in the 2001 makeover of the zoning code, which was litigated in the Home Builders case. As explained at the hearing, the record of that appeal is over 17,000 pages and spans several years. We have submitted relevant legislative history in two previously filed Exhibits. Exhibit D is pages from May 1999 deliberations of the Planning Commission. Exhibit B is pages from the November 1999 and February 2001 deliberations. Exhibit D includes draft PUD provisions dated April 30, 1999. Bates 7873. At this juncture, there was only a single track for PUD review; there were not discrete tracks being considered for Needed Housing and General tracks. The Staff recommendation at this time was to not carry over the 19-lot rule from the old code. Staff explained at Bates 7880: Eugene Hearing Official November 23, 2015 Page 4 The "19 lot rule" is recommended for elimination due to the adoption of the Eugene Local Street Plan which incorporate (sic) a comprehensive set of requirements to address street connectivity. In general, the street connectivity standards provide an effective tool for the City to acquire the necessary right-of- way, including the appropriate alignment, as each land division application is submitted, whereas the "19 lot rule" is intended to ensure that adequate street connections are already in place. However, this provision can severely impact the ability to develop infill parcels even though many sites can demonstrate compliance with the City's new connectivity requirements. If there is interest to maintain the "19 lot rule," staff recommend that it be revised to address existing deficiencies. As Exhibit B shows, by the time the Planning Commission got to a November 8, 1999 draft code, there were discrete PUD standards for Needed Housing and General tracks, and the 19 Lot Rule was under the Needed Housing standards in its current form. Ex. B, Bates 7435. It was not in the standards for the General track. Ex. B, Bates 7431-7433. The Staff Report concurs that West Amazon meets the definition in this standard because "street" in the code is defined to include both improved and unimproved right of way. However, they are asking to find noncompliance anyway. First, Staff references the Planning Commission decision in Deerbrook. Staff Report at 9. (All the Deerbrook decisions appear as Applicant Exhibit A.) The Commission was facing a different situation in that proceeding. There the project would have developed West Amazon through the area where it is now blocked; the Commission said that being able to exit to the north and south on West Amazon would meet the standard. The Commission did not address a situation where a street was unimproved or blocked at some point in one direction after leaving the PUD site. Second, the Staff references the fire code standard for two entrances for fire vehicles. They admit this is not relevant to the 19 Lot Rule. Staff Report at 9. But they say it supports a finding of noncompliance anyway. Not so. This project will comply with the fire code by use of sprinklers unless and until a second route for fire vehicle access is found. The Staffs recommendation to find non-compliance with the 19-Lot standard is unfounded in the language of the code. In summary, the Hearing Official should find that application complies with the 19 Lot Rule, based on the plain language. He should not read language into the standard that is not there. He should not make policy on the fly about how far from the site a vehicle needs to be able to "disperse" in order to meet the standard. This is the legally correct conclusion, and it would also avoid the analysis under the Needed Housing Statute that follows below, with respect to the 19 Lot Rule. B. This project is for "Needed Housing" in the meaning of the statute, such that it gets the protections of the statute. The 19 Lot Rule may not be applied if can be interpreted to Eugene Hearing Official November 23, 2015 Page 5 either allow or disallow the project. The 30-foot landscape buffer requirement may not be applied because it would prohibit development and also requires discretionary interpretation. As noted in our Hearing Memorandum, a handful of key cases are relevant here: Group B, LLC v. City of Corvallis, Or LUBA (LUBA No. 2015-019, Aug. 25, 2015)(reversing denial under Needed Housing Statute); Parkview Terrace Dev't Inc. v. City of Grants Pass, Or LUBA (No. 2014-024, July 23, 2014)(same); Rudell v. City of Bandon, 62 LUBA 279 (20 1 0)(finding discretionary standards inapplicable); Home Builders Assoc. of Lane County v. City of Eugene, 41 Or LUBA 370, 424 (2002)(facial challenge to new provisions in Eugene code as contrary to the statute). Group B is the touchstone case. The key provisions of the Needed Housing Statute being invoked here are in ORS 197.307: 197.307 Effect of need for certain housing in urban growth areas; approval standards for certain residential development; placement standards for approval of manufactured dwellings. (4) Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of needed housing on buildable land described in subsection (3) of this section. The standards, conditions and procedures may not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay. (6) In addition to an approval process for needed housing based on clear and objective standards, conditions and procedures as provided in subsection (4) of this section, a local government may adopt and apply an alternative approval process for applications and permits for residential development based on approval criteria regulating, in whole or in part, appearance or aesthetics that are not clear and objective if: (a) The applicant retains the option of proceeding under the approval process that meets the requirements of subsection (4) of this section; (b) The approval criteria for the alternative approval process comply with applicable statewide land use planning goals and rules; and (c) The approval criteria for the alternative approval process authorize a density at or above the density level authorized in the zone under the approval process provided in subsection (4) of this section. 1. Background on the Needed Housing Statute. Eugene Hearing Official November 23, 2015 Page 6 Based on the discussion at the hearing, it is worth setting out the basics of the statutory scheme here. Then we will explain how the statute has been implemented in the Eugene Code. The requirement for clear and objective standards for decisions related to Needed Housing started with the LCDC's "St. Helens Policy" in 1979.1 The St. Helens Policy intended to ensure that there is enough land with the right zoning inside Urban Growth Boundaries (UGBs) to meet the city's need for the identified housing types. The policy required that standards, conditions and procedures for needed housing be clear and objective and not discourage needed housing through unreasonable cost or delay. See McIntyre-Cooper Co. v. Bd. of Comm'rs of Washington County, 55 Or App 78, 82, 637 P2d 201 (1981)(summarizing St. Helens Policy). The Legislature codified the St. Helen's Policy in 1981 with the adoption of the Needed Housing Statute. See SB 419, 1981 Or Laws, Chapter 884, Sections 5 and 6. After many amendments over the decades, the statute was reorganized, to be policy neutral, in 2011 by 2011 Or Laws Ch 354. "Needed housing" is now defined in ORS 197.303, which says in part: "197.303 "Needed housing" defined. (1) As used in ORS 197.307, "needed housing" means housing types determined to meet the need shown for housing within an urban growth boundary at particular price ranges and rent levels, including at least the following housing types: (a) Attached and detached single-family housing and multiple family housing for both owner and renter occupancy;" When the application is for needed housing, ORS 197.307 applies. The status of the St. Helens Housing Policy as the starting point for the Needed Housing Statute was explained by LUBA in Rogue Valley Association of Realtors v. City of Ashland, 35 Or LUBA 139, 155-158 (1998), aff'd 158 Or App 1, 970 P2d 685, rev denied 328 Or 594 (1999): "The legislative history confirms that the central concern of the legislature in adopting ORS 197.303 and 197.307 was that local governments should not be able to use their land use regulations to exclude certain housing types, particularly manufactured housing, which the legislature believed was needed to satisfy low and moderate-income housing demand. The legislative history also confirms that the current statute and administrative rule were derived (in many instances word-for-word) from the LCDC's St. Helens Housing Policy. A copy of the St. Helens Housing Policy is included in the legislative record of Oregon Laws 1981, chapter 884, sections 5 and 6 (SB 419). House Committee on Environment and Energy, SB 419, April 24, 1981, Ex E (LCDC Housing Policy) (hereafter cited as "St. Helens Housing Policy")." [35 Or LUBA at 156] Eugene Hearing Official November 23, 2015 Page 7 The operation of the statute is simple. If a particular standard is not clear and objective, the city may not apply it in making the decision. See Parkview Terrace Dev't Inc. v. City of Grants Pass, Or LUBA (No. 2014-024, July 23, 2014) (reversing city denial of apartments because seven standards were discretionary, thus "outside the range of discretion allowed the local government under its comprehensive plan and implementing ordinances[.]"); Rudell v. City of Bandon, 62 Or LUBA 279 (LUBA No. 2010-037, November 29, 2010)(city could not apply several standards for a conditional use permit for a single dwelling because they were not clear and objective). Generally, standards are clear and objective in the meaning of ORS 197.307(6) if the local government demonstrates that they do not impose "subjective, value-laden analyses that are designed to balance or mitigate impacts." Rogue Valley Assoc. of Realtors v. City ofAshland, 35 Or LUBA 139, 158 (1998), aff'd 158 Or App 1, 970 P2d 685, rev den 328 Or 594 P2d (1999). To summarize: 1. The Needed Housing Statute applies directly to decisions regulating development of Needed Housing. 2. Under the default provision of subsection (4), the City may only apply clear and objective standards, conditions and processes. Standards requiring interpretation to approve or deny are not clear and objective. 3. Those standards and conditions "may not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay." 4. The City may have an alternative track regulating "appearance and aesthetics" that it applies to applicants. 5. The City may only apply the alternative track discretionary standards for appearance and aesthetics if the applicant retains the option to proceed under clear and objective standards. LUBA reviewed the newly adopted Eugene Code in 2001 (amended version being applied here) in an appeal brought by the Home Builders. That was a facial challenge to the newly adopted code. Home Builders Assoc. of Lane County v. City of Eugene, 41 Or LUBA 370 (2002). LUBA's review found three types of errors alleged by the Home Builders. LUBA prefaced its review: ORS 197.307(3)(d) allows a local government to adopt an alternative approval process for residential applications and permits based on criteria that are not clear and objective, as long as the applicant has the option of proceeding instead under clear and objective criteria. See n 5; see also Callison v. LCDC, 145 Or App 277, 284 n 8, 929 P2d 1061 (1996) (clear and objective criteria are not rendered otherwise simply because local governments provide an optional, alternative set of approval standards that are not clear and objective). As the city explains, the Eugene Hearing Official November 23, 2015 Page 8 city designed the LUCU to offer two separate sets of approval criteria applicable to land use applications involving needed housing. The first track (needed housing track) is intended to contain only clear and objective criteria. The second is an optional, alternative track (alternative track) that includes criteria that are not intended to be clear and objective. Petitioners advance three general types of challenges. [41 Or LUBA at 3831 The first kind of error related to standards that were not clear and objective. First, petitioners contend that some of the criteria under the needed housing track contain terms or standards that are not in fact clear and objective. These criteria are identified in Table 1.1 of Home Builders' petition for review, which challenges over 100 LUCU provisions, organized in 31 categories. [M] The second kind of error is clear and objective standards that are so stringent as to prevent development, forcing an applicant into the discretionary track. Second, petitioners argue that some of the city's needed housing standards, even assuming they are clear and objective, are written in a manner that effectively prohibits and renders impossible the development of needed housing under clear and objective standards. Petitioners offer three examples or types of such standards, and argue that these types of standards violate the needed housing statutes because they essentially force the needed housing developer into seeking approval under the alternative track. Petitioners submit that forcing a needed housing applicant to pursue approval under the alternative track is inconsistent with the intent of the needed housing statutes. [Id. at 383-384] The third kind of error is clear and objective standards that discourage housing through unreasonable cost and delay. Third, petitioners argue that a number of LUCU provisions, even if clear and objective, nonetheless violate ORS 197.307(6) because they "discourage needed housing through unreasonable cost or delay." These LUCU provisions do so by either (1) reducing the area of development sites that can be developed; (2) requiring additional amenities in connection with development; or (3) adding additional requirements for filing complete applications for development. [Id. at 384] In the balance of this argument, we explain how all three types of error are reflected in the city position. LUBA's most recent application of the Needed Housing Statute was in Group B, LLC v. City of Corvallis, Or LUBA (LUBA No. 2015-019, Aug. 25, 2015). There LUBA reversed the city's denial of an apartment on land it found to be in the BLI. There LUBA held Eugene Hearing Official November 23, 2015 Page 9 that is was error for the City to deny the application under discretionary standards when the code did not provide an avenue for approval under clear and objective standards. 2. How the Eugene Code is structured to comply with the Needed Housing Statute Most cities have only a single set of standards for review of each approach to developing housing on land in the BLI. Corvallis is a typical example. Thus, in the Group B decision, LUBA reviewed the decision and removed from the table any grounds for denial that were based on a standard that was not clear and objective, including ambiguous standards that could be interpreted to approve or deny. That left no basis for denial; so LUBA reversed the denial. Eugene took a more sophisticated approach in giving its code a makeover in 2001. It adopted separate tracks of standards for review under discretionary standards and clear and objective standards. The former are referred to as the "General Track;" the latter as the "Needed Housing Track." And, of course, there were five kinds of reviews for housing in the Eugene Code - PUD, CUP, Site Review, Subdivisions, and Partitions. The LUBA appeal in Home Builders involved picking nits that violated the statute - removing from the "Needed Housing Track" those standards that flunked the statutory test. Here the development proposal is for needed PUD approval. The applicant applied under the "Needed Housing Track" of PUD standards. 3. This project is "needed housing" in the meaning of the Needed Housing Statute because the site is the city's Buildable Land Inventory, which is an acknowledged element of the comprehensive plan. We recommend to the Hearing Official Part I of the memo to you from City Attorney Anne Davies (Nov. 12, 2015). The city memo correctly explains that the proposal is for a "needed housing" type and the site is on the acknowledged BLI; therefore, this is a proposal for needed housing that gets the benefit of the Needed Housing Statute. (See also the more cryptic City Attny Opinion on the same subject (Aug. 15, 2008), submitted as Applicant Exhibit G.) That position is consistent with LUBA's most recent discussion of this issue in the Group B decision, which applied the current definition in the statute. LUBA said: However, because the proposal is needed housing located on inventoried buildable lands, ORS 197.307(4) prohibits the city from applying any unclear or subjective standards or conditions to approve or deny the proposed needed housing. [Group B at 15] It is consistent with every other reported case on the issue. It is also consistent with the Planning Commission's determination in the Deerbrook litigation, where the Commission found, at page 10: Eugene Hearing Official November 23, 2015 Page 10 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). [See Applicant's Exhibit A] The City Attorney is also correct in rejecting Mr. Williamson's argument that ORS 197.304(2), commonly called the Eugene/Springfield Divorce Statute, operates to negate the validity of the current, acknowledged BLL Since passage of the Divorce Statute in 2007, the two cities have been incrementally adopting separate BLIs and housing programs. The process has been akin to the separation of the arctic ice mass. Slow. Springfield now has its own acknowledged BLI. Eugene, as usual, is moving more deliberately than Springfield. For the reasons explained by the city attorney, the 1999 BLI for the Metro Area remains the BLI for Eugene. Mr. Williamson challenged the legal status of the proposal as "needed housing." He made the same challenge to the 47-lot Deerbrook PUD (PDT 12-1) approved by the City in 2013. Applicant submitted, as post-hearing Exhibit F, a copy of Mr. Williamson's testimony in the Deerbrook matter. It is the same theme, and it was addressed by the Hearing Official in the Deerbrook decision at page 9. See Applicant Exhibit A. He said: "Ross Williamson's written comment (June 11, 2012) and Southeast Neighbors' written testimony submitted at the hearing (August 1, 2012) both noted that the definition of "Needed Housing" in ORS 197.303(1) includes the phrase "at particular price ranges and rent levels," and because the Residential Land Study document cited above do not distinguish between price ranges and rent levels, there is no "needed housing" as defined by state law. "The hearings official notes that the City Attorney's Office explained in a memorandum to the Mayor and City Council that Springfield and Eugene met their obligations under the needed housing statutes by adopting the Residential Lands Study documents cited above, and that the studies are acknowledged. The hearings official notes that the studies do not distinguish between price ranges and rent levels. No person explained the reason for this to the hearings official, but the reason is not important because they are acknowledged and the hearings official must apply them in the form in which they were acknowledged. Here, this means that the applicant may properly apply for single-family dwellings as "needed housing." "The applicant also noted that the subject property is in the buildable lands inventory; it is inventoried as Site 8 in subarea 6." On appeal in Deerbrook, the Planning Commission confirmed the status of land that is on the acknowledged BLI as land that is for "needed housing" in the meaning of the statute. Commission decision at page 10. Applicant Exhibit A. 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 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 Eugene Hearing Official November 23, 2015 Page 13 component, no matter how minute, and therefore no PUD could possibly comply with LUCU 9.8325(10). "We agree with petitioners, at least in the abstract, that imposing a clear and objective standard that is impossible or virtually impossible to meet is a prohibition in the guise of a standard. ORS 197.307(3)(d) allows the city to offer a discretionary approval track, "provided the applicant retains the option of proceeding under the clear and objective standards[.]" That option is illusory if the clear and objective standards are impossible to satisfy. It may not be the case that LUCU 9.8325(10) is impossible to satisfy. However, the city provides no assistance on this point, or indeed any response to this subassignment of error at all. Accordingly, we sustain this subassignment of error." [Home Builders at 419] The Hearing Official should adopt this same rationale. In this situation, as applied, the 19 Lot Rule is a prohibition on development in the guise of a clear and objective standard. The City Attorney responds to this argument at page 5 of her memorandum. She reframes the applicant's position. The reframe is not correct. The applicant's position is this: An applicant who invokes the clear and objective standards track to develop property that is on the BLI may not be denied based on a clear and objective standard that is impossible to meet for that site; such as standard may not be applied because it is a prohibition in the guise of a standard, as L UBA explained in Home Builders. a. The applicant is not saying that all needed housing applications are entitled to an approval. Page 5 Part A of the City Attorney memorandum creates a straw person. She mischaracterizes the applicant's position as asserting that any needed housing application is entitled to an approval. Not so. Any needed housing application is entitled to an approval if it meets the standards that are clear and objective and are possible to meet. Here there is one that, under the city's approach, is impossible to meet at this site simply because other properties in the area are already developed. Under the city's theory, the City could force all needed housing applicants into the discretionary track by adopting a clear and objective standard that is not possible to meet because the offensive standard exists only under the needed housing track. LUBA found one such standard in the Home Builders facial challenge to the current ordinance adopted in 2001 - the stormwater standard discussed above. That standard was impossible for anyone to meet; so it did not pass muster under the statute. The City was required to remove it from the code. There is no material difference between the stormwater prohibition struck down in Home Builders and the 19 Lot Rule, which is a prohibition for this site. The gist of the city position appears in the last paragraph on page 5: "In Eugene, where an applicant cannot comply with a clear and objective approval criterion, it can take its chances and Eugene Hearing Official November 23, 2015 Page 14 apply for approval under the alternative, discretionary track." That position is contrary to the statute. It is the very same position that LUBA rejected in Home Builders when it tanked the stormwater standard. As LUBA explained in Group B, every needed housing applicant needs to be able to find a way through the clear and objective standards to an approval. b. The statute requires that each developer of needed housing is entitled to a path to approval under clear and objective standards, not that some developers are entitled to such a path. The city's final spin is that only some developers of needed housing need to have a path to development, not all of them. The City cites no authority for this proposition. If one entertains this thought, it leads to an obvious question - How many developers of needed housing would it be OK for the City to prohibit from a clear and objective path to development approval? Taking as an example the stormwater standard that LUBA struck down, how about if the City had readopted that original standard, exempted out the drainage basins in northeast quadrant of the City, but left that prohibition in place everywhere else. Here the City is suggesting that would be OK under the statute. Not likely. The City can't suggest why that would be so. 6. The potential to file five separate partition applications in three consecutive rounds in order to escape the 19 Lot Rule also does not comply with the Needed Housing Statute because it unreasonably increases the costs and delays the provision of needed housing. At the hearing, in their oral remarks, Staff asserted that the site could be developed by partitions under the Needed Housing Track, avoiding a PUD, and thereby avoiding the 19 Lot Rule. The undersigned was skeptical in the moment, asserting that a PUD would be needed, subjecting development to the 19 Lot Rule. On closer review of the code, Staff is correct. Staff elaborated on the availability of the Needed Housing Partition option at pages 3-4 of their November 12 memorandum. As the Staff Memo explains, a partition of up to three parcels that does not create a street can be done with a "Needed Housing" partition, outside of the PUD process, which would avoid the 19 Lot Rule. In order to get to the same development proposed here, the applicant would need to go through the partition process five times in three successive rounds. The first partition would create three parcels. The second round would request three more partitions, that is three more applications - one creating three parcels from each of the initial three parcels. That would get the applicant to nine parcels. One more partition round would be needed to get to ten parcels; one of the nine parcels would be divided in two. Put differently, the Staff is saying that the applicant could get to where it proposes to go here (the creation of ten buildable lots under clear and objective standards) by filing five separate partition applications instead of one PUD application and the related subdivision application. It is important to note that, under the code, both a PUD and a partition have two discrete steps - a tentative approval, and then a final approval. Additional tentative applications on a subject property cannot be submitted until the final approval application has been approved. Eugene Hearing Official November 23, 2015 Page 15 a. Impacts of shifting to the partition process. The City is suggesting that the applicant can take the longer, slower, more expensive way around the block to get to exactly where it says the applicant can't go under the Needed Housing PUD process. The process is slower because there would be three complete rounds of applications and approvals needed from the City. That would be: the first partition creating three parcels; the second round of partitions creating a total of nine; and the third creating the tenth. These three discrete steps would take a lot longer than the process anticipated here. Each partition approval involves a tentative approval and then a separate review for final platting. The PUD process anticipates a tentative PUD application, which can become final in conjunction with the tentative subdivision approval; final subdivision platting follows. Put differently, the PUD process involves 1.5 rounds of processing (tentative PUD; final PUD/tentative subdivision; and final plat), while the partition approach involves three rounds of processing. Aside from the three rounds of applications rather than 1.5, there are other aspects of the partition approach that slow down the entire process of preparing applications for submission. Initially, five discrete applications are needed, rather than just the PUD and associated subdivision. This means five separate application packages need to be assembled by the applicant's professionals, including five discrete tentative and final plat maps. There is also additional planning work that comes with the partition process. For example, each partition application must include a conceptual buildout plan for the balance of the site that demonstrates how lots larger than 13,500 sq ft could be further divided down to lots that comply with the size limitations in the code. This approval standard is in EC 9.8220(6): On R-1 zoned property, if the partition results in a parcel greater than 13,500 square feet in size based on EC 9.2761(5)(b), the application shall indicate the location of parcel lines and other details of layout that show future division may be made without violating the requirements of this land use code and without interfering with the orderly extension of adjacent streets, bicycle paths, and accessways. Any restriction of buildings within future street, bicycle path, and accessway locations shall be made a matter of record in the tentative plan approval. The lot size standard requiring a conceptual buildout plan for the balance of the property at the time of each partition submission appears in EC 9.2761(5)(b): Exceptions to the maximum lot size shall be granted if any of the following is met: * * * * The lot exceeding the maximum lot size is intended to reserve a large lot for future land division with feasibility demonstrated by a conceptual buildout plan. Eugene Hearing Official November 23, 2015 Page 16 It is worth noting that the conceptual buildout plan to be submitted with each partition application would have to cover the balance of the entire site. There is no 20% grading limitation in the Needed Housing partition standards. Therefore, the entire site is potentially developable. As a second example, a Needed Housing partition application comes with a requirement to inventory all trees on the site, have a certified arborist evaluate them according to the priorities in the code, and then demonstrate to the city how the tree preservation priorities in the code were "considered." See EC 9.8220(2)(k), which invokes the Tree Preservation and Removal Standards in EC 9.6880 through EC 9.6885, and EC 9.8685(2), which sets out the requirements to demonstrate consideration of trees. The Needed Housing PUD standards require none of this. Aside from the application fees, the cost of using the serial partition process to avoid the 19 Lot Rule will be significantly higher than for the PUD process. For example: There are the professional costs of preparing five tentative partition applications, rather than just the PUD and subdivision applications. There is additional cost for the inventory and professional costs associated with the tree inventory, documentation, and arborist certification required for each partition application. There is the likely very significant costs associated with building out roads adjacent to the development site. The Staff concurs that Vivian Drive need not be developed due to the 20% slopes. Under the partition standards, however, there is no 20% grading limitation. Roads that are excepted out due to slope in the PUD process would be required under the partition process. b. Discussion The option proposed by the City would create the same number of lots, but with a lot more delay and a lot more cost. This would be contrary to the prohibition in the statute that would apply clear and objective standards (the 19 Lot Rule) but with unreasonable cost and delay in providing the needed housing. The City has not explained, and indeed cannot explain, why the 19 Lot Rule should be acceptable in an efficient process to get to a development plan, but should not be applied in the longer, slower, more expensive way to get to the same development plan. Applying the 19 Lot Rule in this PUD process begs for an explanation why it is reasonable. In summary, the Hearing Official should find that the 19 Lot Rule may not be applied because it would force the applicant into a process for development (successive partition applications) that would unreasonably increase the cost of and delay the provision of needed housing, contrary to ORS 197.307(4). Although the standard is clear and objective, it nevertheless can't be applied due to its impacts on cost and delay. 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] Eugene Hearing Official November 23, 2015 Page 18 Here, in this as applied context, the Hearing Official can make the finding of unreasonable cost and delay where LUBA says it is most appropriate. There is no utility in forcing an applicant to go through a slower, more expensive review process in order to be able to develop the property under clear and objective standards. The sole effect of the 19 Lot Rule is to impose on the owner a slower and more expensive approval process. This violates the statute. 7. The 30-foot landscape may not be develop because the standard, applied according to its plain language, would prohibit development of the site for lack of access. In addition, if the City believes the standard must be interpreted in order to not be absurd, then the standard is not clear and objective. The landscaping setback standard is: EC 9.8325(3): The PUD provides a buffer area between the proposed development and surrounding properties by providing at least a 30 foot wide landscape area along the perimeter of the PUD according to EC 9.6210(7). This standard was the subject of our hearing letter dated November 3. It was responded to by Staff in a two page memorandum distributed at the hearing. It was not addressed in the staff s post-hearing memorandum of November 12. This standard is troublesome for any residential developer, based of how it was interpreted in the recent Deerbrook litigation. There is a 2004 Director Interpretation saying that fences are not allowed in the 30-foot landscape area. See Applicant Exhibit C. (Director Interpretation and Hearing Official decision on appeal). In the Deerbrook PUD matter, the Hearing Official interpreted the standard as allowing a fence to be placed on the perimeter of the property with the 30-foot buffer area to be inside the fence. Hearing Official decision, Exhibit A at 10-11. The Planning Commission reversed that, saying the fence had to be on the inside of the 30-foot buffer. Commission Decision, Exhibit A at 30-31. LUBA affirmed on that issue. Here we challenge the legality of applying the standard at all, for two reasons. But first a few words on real world impacts. As mentioned at the hearing, the inability to fence affects the marketability and value of lots. As explained at the hearing, the market wants fences. Having to fence inside the 30-foot buffer makes the buffer area an amenity for the neighbor rather than the lot owner, which further impacts value. The plain language of this standard does not invite the crack that the Director read into it in 2004, or any crack at all for that matter. The language is pretty simple. It requires the buffer on Eugene Hearing Official November 23, 2015 Page 19 the perimeter adjacent to "surrounding properties." That would include private property, such as adjacent private lots, and public property, such as streets. Surrounding is surrounding. The dictionary definition of "surrounding" also does not allow the exception that the Director read into it. See Webster's Third New Int'l Dictionary (unabridged ed 2002) at 2302. "Surrounding * * * the circumstances, conditions, or objects by which one is surrounded." Applying this standard as it is written would not allow any development of the property. The standard would require the 30-foot buffer along West Amazon Drive, and that would preclude the private driveways needed for access. The fact that the Director pretends that the standard does not apply adjacent to any street does mean it is OK to apply the standard elsewhere around the property, as the Director would do here. Staff responded to this issue in their two-page hearing memorandum. The major pitch they make is that reading the standard as suggested by the applicant would lead to absurd results, and the Hearing Official should not put an absurd meaning on the standard. The Hearing Official should reject the invitation to treat the provision as absurd. That would then require the Hearing Official to interpret it in a way that is not absurd, and there is no guidance in the code context or in the legislative history as to how to trim it down to a correct reading. There is certainly no basis to endorse the meaning that the Director gave it in 2004. The simple alternative is to dispose of the standard the way the LUBA disposed of the storm water standard in 2002 - reject it as a development prohibition in the guise of a standard. Staff also suggest that it is too late in the life of the code provision to raise this issue. It should have been raised by the Home Builders in 2001; it should have been raised by the Deerbrook applicant; now the Planning Commission has spoken as to how to apply the standard. The Hearing Official gets a fresh crack at this standard, here and now, under the Needed Housing Statute, which applies directly. LUBA did not look at this standard among the 100 code standards that it did review in Home Builders. The Planning Commission in Deerbrook did not address the question of whether the standard can be applied at all. In summary, the landscape standard has two fatal shortcomings. First, the plain language does not allow access roads to penetrate the buffer; hence the standard prevents development; the statute requires that development be allowed under clear and objective standards, not prohibited. When this code standard was last interpreted in 2004, the Director opened a crack in it by saying that "surrounding properties" does not include adjacent city streets. The Hearing Official gets a fresh look at the standard here. Second, because the City concedes that the standard must be interpreted in order to its not leading to absurd results, the standard therefore is too ambiguous to be applied at all. See discussion of the 19 Lot Rule above and Group B. Any interpretation will either allow or disallow development, or dictate the scope of the limitation or conditioning to be applied under the standard. This discretion should be fatal to applying the standard at all. Furthermore, how Eugene Hearing Official November 23, 2015 Page 20 deep of a crack would the Director read into this standard? Is it only city streets adjacent to the site that afford relief from the buffer? How about a county street? How about a city owned property that is adjacent but not a street? How about school property? How about city owned Goal 5 property between the subject property and a stream? What is the scope of this crack that the Director sees in the meaning of the standard? The Hearing Official should hold that this standard may not be applied at all. Sincerely, ow 511~6" Bill Kloos Cc: Client Branch Engineering