APP-9 <br />Applicant/HBA Appeal Issue #1: 20% Slope Grading Prohibition <br />"The HO erred in applying the 20% slope grading standard at all, and in finding that the application <br />did not comply with the standard." <br />1. "The HO erred in concluding the 20% slope grading standard must be applied. <br />(a) The method for measuring 20% slope is too ambiguous for the standard to be <br />applied at all. The argument over how to measure slope shows the standard can't <br />be applied in a clear and objective way. Hence, it may not be applied at all. ORS <br />197.307(4); OAR 660-0081-0015; Rudell v. City of Bandon, 62 Or LUBA 279 (LUBA No. <br />2010-037,. November 29, 2010). <br />PC Findings: The Applicant argued to the HO that the approval criterion at EC 9.8325(5) "There <br />shall be no proposed grading on portions of the development site that meet or <br />exceed 20% slope" violates state laws that require needed housing approval criteria <br />to be clear and objective. The Applicant argues that the City is prohibited from <br />applying the 20% slope criterion to the subject application for needed housing and <br />app -r <br />from applying it to any future applications for needed housing. The applicant asserts <br />that, because the criterion itself does not specify the method for determining slope, <br />it is not clear and objective. <br />The HO rejected the Applicant's argument, citing another LUBA case that rejected <br />this exact argument: <br />The applicant, in its written statement, hearing testimony, and post-hearing <br />testimony, also asserts that this criterion (EC 9.8325(5)) requires the city to <br />exercise discretion and cannot be applied as a clear and objective standard, <br />as required for a "needed housing" development, because it does not set out <br />the prescribed unit of measurement for determining slope. However, the <br />Land Use Board of Appeals rejected this exact argument, about this exact <br />criterion (EC 9.8325(5)) in Home Builders v. City of Eugene, 41 Or LUBA 370, <br />410-411 (2002). LUBA stated, "the slope of a property is an objective <br />determinable fact, and the absence of instructions on how to determine <br />slope does not offend [the needed housing statute]." (See page 12 of HO <br />Decision.) <br />PC Decision: The PC rejects this argument and finds no error in the HO's reliance on the direct <br />ruling from the Land Use Board of Appeals (LUBA) [Home Builders v. City of Eugene, <br />4101, LUBA 370, 410-411 (2002)] that rejected this exact argument. This ruling does <br />not alter the HO's decision. <br />(b) Absent code language on how to measure slope, the method to be used was not <br />initially specified until the HO decision. This is too late. It violates the applicant's <br />right to know at the front end of the process what it must show. ORS 227:173(1); <br />West Main Townhomes v City of Medford, 234 Or App 343, 346, 229 P3d 607 <br />(2010). <br />Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 8 <br />