Eugene Hearing Official <br />November 3, 2015 <br />Page 3 <br />Because this site is on the acknowledged Buildable Land Inventory (BLI), the owner has a right <br />to an approval of development under clear and objective standards. The Staff Report notes that <br />this site could be applied for under the General Criteria, which are discretionary. Staff Report at <br />10. However, as LUBA explained in Group B, LL C, the City may only apply discretionary <br />standards if the owner has a right to clear and objective standards. <br />"Under ORS 197.307(6), a local government may impose unclear, subjective or <br />discretionary standards and conditions on needed housing only if it offers a path <br />that allows needed housing subject only to clear and objective standards and <br />conditions." [Slip op 12 line 22] <br />Here the right to develop under clear and objective standards is illusory. The City may not apply <br />a standard that is clear and objective but is so stringent as to make development approval <br />unobtainable. An example of this is the stormwater standard adopted by the City in 2001 as part <br />of the zoning code update, but struck down by LUBA in 2002 in the Honze Builders decision. <br />There the Home Builders challenged a stormwater discharge standard that was clear and <br />objective but was so stringent that no development proposal could meet it. LUBA struck it down <br />as a prohibition on development under the guise of a clear and objective standard. LUBA agreed: <br />"2. Stormwater Runoff <br />In section II.A.2.u, we held that LUCU 9.8325(10) imposes a clear and <br />objective requirement that stormwater runoff from a PUD will not "create <br />negative impacts on natural drainage courses" such as erosion, turbidity or <br />sediment transport, "due to increased peak flows or velocity." We agreed with the <br />city that, while LUCU 9.8325(10) may be difficult to meet, its prohibition on <br />negative impacts of the specified type is clear and objective. Petitioners argue <br />that, even if LUCU 9.8325(10) is clear and objective, it nonetheless offends the <br />needed housing statute, because it is so difficult to meet that it effectively forces <br />needed housing applicants to opt for the alternative, discretionary track. [FN36] <br />Petitioners submit that rain *420 falls on all development, and all water moving <br />across ground carries some sediment, creates some turbidity, and has some <br />erosional component, no matter how minute, and therefore no PUD could <br />possibly comply 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 />