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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
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Yes
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I obligation, petitioner argues, it uses the word "shall," which LDC 1.6.30 <br />2 defines as "[e]xpressing what is mandatory." <br />3 We agree with petitioner that LDC 4.0.60.c.2 is not a "clear and <br />4 objective" standard, and therefore cannot be applied to deny needed housing, <br />5 consistent with ORS 197.307(4). In order to apply LDC 4.0.60.c.2 to the <br />6 proposal, the city council had to interpret that code provision in at least two <br />7 ways. First, the city (implicitly) determined that LDC 4.0.60.c.2 applies not <br />8 just to the design of proposed streets, but also to proposed development served <br />9 by already designed, approved and constructed streets. Second, the city <br />10 concluded that the terms of LDC 4.0.60.c.2 are mandatory approval standards <br />11 that must be satisfied to approve development, not merely design features that <br />12 "should" be considered (but need not be imposed). Record 22. The merits of <br />13 the latter interpretation are somewhat dubious. Even with full deference <br />14 accorded a governing body's interpretation of code provisions pursuant to ORS <br />15 197.829(1) and Siporen v. City of Medford, 349 Or 247, 243 P3 d 776 (2010), it <br />16 is a tall order to interpret "should" as that term is defined at LDC 1.6.30 to <br />17 mean a mandatory obligation, because LDC 1.6.30 expressly defines it as non- <br />18 mandatory. In its response brief, the city argues that the modal auxiliary verb <br />19 "should" modifies only the first clause of LDC 4.0.60.c.2 ("should not exceed <br />20 600 ft") and does not modify the second clause ("nor serve more than 18 <br />21 dwelling units"). However, that reading does violence to the grammatical and <br />22 semantic structure of LDC 4.0.60.c.2. "Should," as a modal auxiliary, clearly <br />23 modifies the main verbs in both clauses ("exceed" and "serve"). As defined by <br />24 LDC 1.6.30, "should" means "expressing what is desired." Read in light of <br />25 that definition, LDC 4.0.60.c.2 expresses the desire that a cul-de-sac serve no <br />Page 17 <br />
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