LUBA RET. EX 076/077 RE-F - Laserfiche WebLink

• And, while LUBA affirmed the City's decisions on these issues, if you read the sections of LUBA's order that are related to the issues I discuss below, you'll find that the author of LUBA's decision did little more than quickly skim over the issues and parrot the City's flawed explanations. It would be prudent for commissioners to take into account that LUBA's initial decision regarding the City's inadequate public process failed muster with the Court of Appeals, and so you shouldn't take for granted that you and LUBA got it right on the street-related issues, either. The Court of Appeals has demonstrated that they'll take the time to dig into the details more thoroughly than LUBA, and I'm confident a future Court of Appeals review would correctly find that the Hearings Official erred, regardless of what LUBA might decide on another appeal. Summary of Testimony The Public Works report contains three statements that the Hearings Official and Planning Commission relied upon for findings regarding whether Oakleigh Lane in its current condition would be safe and adequate and meet the approval criteria in EC 9.8320(5), (6) and (11). These statements are inconsistent, and the Hearings Official neglected to adequately and properly explain how these inconsistencies were resolved, as required by the Oregon Supreme Court and the Oregon Court of Appeals. • Approximately 6 feet of the paving on the 250-foot segment of Oakleigh Lane • immediately to the west of the subject property lies outside the 20-foot public right-of- way and on private property. The Public Works Report, on which the Hearings Official relied, assumed a 19-foot wide, unobstructed pavement as the basis for the report's conclusion that Oakleigh Lane's existing pavement was adequate and safe. The Hearings Official's findings did not explain how the decision would ensure that the entire 19-foot pavement width would.remain available for public use and that cars wouldn't be legally parked on the pavement on private property and thus obstruct the pavement. Accordingly, all conclusions regarding the safety and adequacy of Oakleigh Lane that are based on a "19-foot pavement width" are not valid and cannot be relied upon. The pnly technical analysis in the record that actually dealt with the right-of-way width adjacent to the subject property concluded that a 45-foot right-of-way was necessary for the public safety and compliance with the approval criterion EC 9.8320(5)(a). The decision, however, ensures only a 42.5-foot wide right-of-way. The Nolan/Dolan limitations apply to exactions, but not to an approval criteria that requires an adequate right-of-way for the public safety. A condition that ensures a 45-foot right-of=way adjacent to the subject property must be added in order to approve the application. • The Hearings Official misinterpreted and misapplied the approval criterion at EC 9.8320(5). This criterion must be interpreted in a way that ensures the PUD provides safe and adequate transportation systems for its residents, and the "traffic system" must Trautman Appeal Testimony PDT 13-1 Page 2 July 27, 2015 194