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PDT 15-1
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Last modified
12/18/2015 4:01:16 PM
Creation date
12/17/2015 9:14:46 AM
Metadata
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Template:
PDD_Planning_Development
File Type
PDT
File Year
15
File Sequence Number
1
Application Name
CHAMOTEE
Document Type
Appeal Materials
Document_Date
12/16/2015
External View
Yes
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I unambiguously prohibits the location of The Regent building within 135 feet of <br />2 the south property line of what is now Tract B. However, Condition 12 is <br />3 ambiguous regarding whether other development is similarly precluded within <br />4 the area that is now Tract B. Condition 12 mentions no other development or <br />5 buildings, and does not state, or necessarily imply, that no other building is <br />6 allowed within 135 feet of the south property line. On the other hand, <br />7 Condition 12 also does not state, or suggest, that other buildings can be <br />8 constructed within that 135-foot wide area consistent with the apparent purpose <br />9 of the condition, to buffer nearby single-family residences from The Regent <br />10 building. Condition 12 is sufficiently ambiguous on these points that it can be <br />11 interpreted to support either of two diametrically opposed conclusions, one <br />12 where needed housing is allowed and one where it is prohibited. A condition <br />13 that requires such interpretation, to determine whether proposed needed <br />14 housing is allowed at all, is not a "clear and objective" standard or condition <br />15 within the meaning of ORS 197.307(4). See Tiruniali v. City of Portland, 169 <br />16 Or App 241, 246, 7 P3d 761 (2000) (a standard that is ambiguous, i.e., capable <br />17 of more than one plausible interpretation, is "unclear" and hence not a "clear <br />18 and objective land use standard" for purposes of the exclusion to LUBA's <br />19 jurisdiction at ORS 197.015(10)(b)(B)). <br />20 The city argues, nonetheless, that ORS 197.307(4) does not preclude the <br />21 city from applying Condition 12, as interpreted, as a basis to require petitioner <br />22 to obtain a modification or nullification of the 1981 DDP, pursuant to the <br />23 discretionary standards at LDC 2.5.40.04. We understand the city to argue that <br />24 because petitioner proposes a new building in an area where the 1981 DDP <br />25 approves no building, petitioner is necessarily seeking to redesign or modify <br />26 the 1981 DDP. As noted, a request to modify the 1981 DDP is governed by the <br />Page 11 <br />
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