Eugene Hearing Official <br />November 3, 2015 <br />Page 4 <br />The Hearing Official should find that: Because this site is on the BLI, the owner is entitled by <br />statute to a development approval under clear and objective standards; clear and objective <br />standards that prohibit development may not be applied under the statute; the 19-lot rule may not <br />be applied because it prohibits development. <br />EC 9.8325(3): The PUD provides a buffer area between the proposed development and <br />surrounding properties by providing at least a 30 foot wide landscape area along the <br />perimeter of the PUD according to EC 9.6210(7). <br />The plain language of the standard prohibits any development of the site. <br />This standard is troublesome for any residential developer, based on how it was interpreted in the <br />recent Deerbrook litigation. There is a 2004 Director Interpretation saying that fences are not <br />allowed in the 30-foot landscape area. See Exhibit C. (Director Interpretation and Hearing <br />Official decision on appeal). In the Deerbrook PUD matter, the Hearing Official interpreted the <br />standard as allowing a fence to be placed on the perimeter of the property with the 30-foot buffer <br />area to be inside the fence. Hearing Official decision, Exhibit A at 10-11. The Planning <br />Commission reversed that, saying the fence had to be on the inside of the 30-foot buffer. <br />Commission Decision, Exhibit A at 30-31. LUBA affirmed on that issue. <br />The inability to fence affects the marketability and value of lots. The market wants fences. <br />Having to fence inside the 30-foot buffer makes the buffer area an amenity for the neighbor <br />rather than the lot owner, which further impacts value. <br />With the briefing here, we ask the Hearing Official to determine that this standard may not be <br />applied because, under its plain language, it precludes any development on the site. The <br />requirement for a "30 foot wide landscape" "buffer area between the proposed development and <br />surrounding properties" may not'be applied to this application because it is contrary to the <br />requirements of the Needed Housing Statute. See discussion above. <br />The landscape standard has a fatal shortcoming. The plain language does not allow access roads <br />to penetrate the buffer; hence the standard prevents development; the statute requires it to allow <br />development; hence it may not be applied. <br />When this code standard was last interpreted in 2004, the Director opened a crack in it by saying <br />that "surrounding properties" does not include adjacent city streets. The Hearing Official gets a <br />fresh look at the standard here. <br />How deep of a crack would the Director read into this standard? Is it only city streets adjacent to <br />the site that afford relied from the buffer? How about a county street? How about city owned <br />property that is adjacent but not a street? School property? City owned Goal 5 property between <br />the subject property and a stream? What is the scope of this crack in the meaning of the <br />standard? <br />