Mr. Fred Wilson <br />March 17, 2017 <br />Page 4 <br />3. If the TIA Rule information requirements can be applied at this juncture in the <br />decision process, are the items of information alleged to be missing in the TIA report <br />necessary to approve the report? <br />4. Is the TIA Report otherwise adequate on the merits? <br />1. The TIA requirement in the code is not relevant to allowing the proposed use, which is <br />permitted outright by the code. <br />This issue is the subject of the seven day submittal (March 8) from this office. <br />Our March 8 memorandum explains that the uses proposed for this site are permitted outright or <br />permitted subject to development standards, which have been met in the proposal. No party has <br />argued otherwise. We summarize this point at page 2 of our March 8 letter: <br />"To summarize, there is no explicit linkage in the code that makes this permitted <br />use contingent upon complying with any substantive standard in the TIA process. <br />If the TIA were intended to be a standard that limits the initiation of the use, state <br />law requires that to be explicit in the code. ORS 227.173(1). We start with the <br />premise that the zoning code lists the proposed uses as permitted uses, with the <br />residential being subject to identified special development standards in EC <br />9.5000. The TIA requirement is not a "Special Development Standard" in EC <br />9.5000. Neither is it a "General Development Standard" in EC 9.6000. It is, <br />instead, grouped with "Application Requirements and Criteria" in EC 9.8000." <br />The TIA requirement in the code is inherently a discretionary review process; it involves <br />judgments; it is processed as a statutory permit - hence the opportunity for appeal and a hearing. <br />If the TIA process is viewed as a process that can potentially limit or block the proposed uses, <br />that would transform a permitted use into a discretionary use, say a "conditional use," and that <br />would be flatly contrary to what the code allows on this site as "permitted." <br />2(a) If the TIA review process is required to allow this use, then the City is <br />prohibited from applying the TIA Rule because the Rule is not an acknowledged <br />land use regulation. <br />The entirety of opponents' objections to this application relate to compliance with the details of <br />the TIA Rule. If the Rule is not a source of standards that may be applied by the City, then the <br />objections of the opponents do not provide a basis for overturning the Director's approval of the <br />TIA. <br />This issue was discussed in depth in the hearing letter from this office dated February 27. Part <br />3(b) of our hearing letter documents the status of the Rule as not being acknowledged. It <br />summarizes the Davenport and Von Lubken line of cases that explain that the City may only <br />apply "land use regulations," and a local enactment only achieves the status of a land use <br />regulation when it is acknowledged. Here we do not have a "land use regulation" because the <br />Rule was not acknowledged. The City knows how to pursue acknowledgment of administrative <br />