CONTE - EXHIBIT A <br />1 ~ n_ <br />I S' G A R V C Y S C H U B E R T B A R E R <br />B-d <br />MEMORANDUM <br />TO: <br />City of Eugene Planning Commission <br />FROM: <br />Carrie Richter <br />DATE: <br />June 28, 2013 <br />RE: <br />Benson Zone Change; File No. Z 13-2 <br />This memorandum provides a legal framework to guide the Planning Commission's consideration of this <br />case. This legal guidance is intended to supplement the summary narrative provided by the cover letter, <br />as well as a more detailed explanation of the appellant's case provided by Bill Kabeiseman of Garvey <br />Schubert Barer in a letter to the Hearings Official, dated May 8, 2013. (Exhibit G.) <br />The Planning Commission's Scope of Review <br />As an initial matter it is important to understand the scope of the Planning Commission's review. The <br />Planning Commission must determine if the Hearing's Official's decision is correct given the facts <br />presented and the applicable approval criteria at issue. <br />The Planning Commission must not give the Hearing's Official's decision any special deference when it <br />comes to evaluating what a particular ordinance says or means. No statutory or Eugene Code standard <br />grants the Hearings Official such broad discretion, and the Planning Commission decision to deny or <br />remand this application does not require the commissioners to find that the Hearings Official's findings or <br />conclusions are unreasonable. <br />To the contrary, under Eugene Code, the Planning Commission is the best authority to determine what the <br />various land use plans require.' This authority arises from Eugene Code 2.350(e), which charges the <br />Planning Commission with exclusive authority to make recommendations for the adoption of future land <br />use plans. The power reserved to the Planning Commission with respect to land use plans requires that <br />commissioners not be show reluctance to take on this responsibility in the present case by deferring to the <br />Hearings Official's opinion. <br />The Planning Commission's review of a Hearings Official's decision is also not limited in the same way <br />as the Land Use Board of Appeals reviews of local code interpretations by the local elected officials, in <br />which cases LUBA must affirm so long as the interpretation is plausible. ORS 197.829. <br />In summary, the Planning Commission's scope and responsibility in reviewing the Hearings Official's <br />decision in this case requires, in essence, that commissioners start from the beginning and evaluate <br />whether the applicant has convincingly demonstrated, based on substantial and reliable evidence, that the <br />' This is in contrast to the more limited duties of the Hearings Official whose role is strictly to "receive and examine <br />available information, conduct public hearings, prepare a record thereof, and enter findings and conclusions in <br />connection therewith." EC 2.370. <br />-23- <br />