Eugene Planning Commission <br />December 16, 2015 <br />Page 7 <br />(6) In addition to an approval process for needed housing based on clear and <br />objective standards, conditions and procedures as provided in subsection (4) of <br />this section, a local government may adopt and apply an alternative approval <br />process for applications and permits for residential development based on <br />approval criteria regulating, in whole or in part, appearance or aesthetics that are <br />not clear and objective if: <br />(a) The applicant retains the option of proceeding under the approval process <br />that meets the requirements of subsection (4) of this section; <br />(b) The approval criteria for the alternative approval process comply with <br />applicable statewide land use planning goals and rules; and <br />(c) The approval criteria for the alternative approval process authorize a <br />density at or above the density level <br />authorized in the zone under the approval process provided in subsection (4) of <br />this section. <br />ORS 227.173(2) raises the bar for the City for when a standard can meet the statute. It says: <br />(2) When an ordinance establishing approval standards is required under ORS <br />197.307 to provide only clear and objective standards, the standards must be clear <br />and objective on the face of the ordinance. <br />Finally, there is a special burden of proof that the City will have to meet to defend its decision <br />on appeal. ORS 197.831(1) says: <br />197.831 Appellate review of clear and objective approval standards, <br />conditions and procedures for needed housing. In a proceeding before the Land <br />Use Board of Appeals or an appellate court that involves an ordinance required to <br />contain clear and objective approval standards, conditions and procedures for <br />needed housing, the local government imposing the provisions of the ordinance <br />shall demonstrate that the approval standards, conditions and procedures are <br />capable of being imposed only in a clear and objective manner. <br />These statutes operate simply. If the City has not shown that a standard is clear and objective <br />on its face, and that it can only be applied in a clear and objective manner, then the City may not <br />apply it to make the decision. See Parkview Terrace Dev 't Inc. v. City of Grants Pass, _ Or <br />LUBA (No. 2014-024, July 23, 2014) (reversing city denial of apartments because seven <br />standards were discretionary, thus "outside the range of discretion allowed the local government <br />under its comprehensive plan and implementing ordinances[.]"); Rudell v. City of Bandon, 62 <br />Or LUBA 279 (LUBA No. 2010-037, November 29, 2010)(city could not apply several <br />standards for a conditional use permit for a single dwelling because they were not clear and <br />objective). <br />