Appeal Materials - Laserfiche WebLink

Eugene Planning Commission August 11, 2016 Page 4 issues of code provision applicability would be decided during the second step of that process. As discussed below, neither of those beliefs is correct. The Hearing Official's reticence to decide the issue appears to be grounded in the notion that there is no justiciable controversy to be decided, and, therefore, any decision on the matter would be an impermissible advisory opinion.'` Any prohibition against advisory opinions applies to courts exercising their constitutional authority; it does not, however, apply to or limit the Hearings Official's authority to decide matters before him. The Hearing Official's authority is derived not from the state and federal constitution but from state statute (ORS 227.165) and the Eugene code (EC 9.724(2)). Neither of those sources of authority acts to prohibit the Hearing Official from deciding the issue raised by the City Attorney - i.e., What standards and criteria apply to the development implementing the approved CIR CUP? Likewise, the Planning Commission also has such authority and duty to decide this issue. To the contrary, Oregon law requires that the Hearing Official (and the Planning Commission when appealed) make a decision on the matter. ORS 227.173(3) obligates the City to inform the applicant as to the standards and criteria "considered relevant to the decision" approving or denying the permit application. See also ORS 197.763(3)(a) providing that notice of application shall "list the applicable criteria from the ordinance and plan that apply to the application." Taken together, it is clear that the Hearing Official has an obligation to determine which standards apply to the permit application and which do not. Before discussing the applicability of the goal post rule, it should be understood that there is a fundamental and legal difference between land use permits and building permits. Land use permits (planned unit developments, site review, conditional use permits, design review, traffic impact analysis review, variances, etc.) implement the comprehensive plan and the city's land use regulations (i.e. Eugene Land Use Code, Chapter 9) and are subject to the goal post rule. Building permits and other permits that implement the health and safety provisions of the Eugene Code, do not implement the comprehensive plan and the city's land use regulations. These permits are not subject to the goal post rule. In other words, the Planning Commissioners should understand that the fundamental health and safety requirements such as the City's fire code or Oregon's structural specialty code adopted by the City are not "land use regulations" Those building or construction standards do not implement the comprehensive plan and, therefore, do not fall within the definition of a "land use regulation" as defined by state statute (ORS 197.015(11)) and which land use regulations are frozen by the goal post rule (ORS 227.178(3)(a)). The affordable housing that will be constructed on the property will meet all of the applicable health and safety standards in Eugene's current fire and building codes. However, what is The Applicant does not agree with the proposition that there is no justiciable controversy. The City Attorney has advised that the City will apply subsequently adopted land use regulations to the Applicants' building permits. Applicant contends that the City is prohibited from doing so under Oregon's goal post rule. See Cuter v. Atkins, 357 Or 460, 484-523 (2015) for a comprehensive discussion regarding issues of justiciability and advisory opinions by the Oregon courts.