Attachment A <br />Planning Commission <br />April 20, 2016 <br />Page 2 <br />(a) Demonstrate that the proposed amendment is consistent with its most recent <br />economic opportunities analysis and the parts of its acknowledged <br />comprehensive plan which address the requirements of this division; or <br />(b) Amend its comprehensive plan to incorporate the proposed amendment, <br />consistent with the requirements of this division; or <br />(c) Adopt a combination of the above, consistent with the requirements of this <br />division." <br />For purposes of subsection (a), the City's "most recent economic opportunities analysis" refers to <br />the commercial lands analysis that has been formally adopted and acknowledged as part of the <br />Metro Plan - the CLS. The caselaw is clear that a city must make its land use decisions based on <br />the acknowledged comprehensive plan. This means that when a city makes a decision that requires <br />findings demonstrating compliance with Goal 9, such as the proposed plan amendment in this case, <br />the Goal 9 findings must be based on a commercial lands inventory that is formally adopted and <br />part of the acknowledged comprehensive plan. <br />There are no Court of Appeals cases that deal with the situation where an adopted, <br />acknowledged buildable lands inventory has expired (i. e., the planning horizon used for <br />determining future need for commercial lands has passed). There is a LUBA case, however, that <br />holds that "any local government that has a housing inventory with a housing needs projection that <br />uses a planning period that has already passed is essentially operating without a useable housing <br />needs analysis." Lengkeek v. City of Tangent (Lengkeek II). (The Lengkeek cases dealt with <br />Statewide Planning Goal 10, which requires an adequate supply of land for residential, not <br />commercial, needs. That said, the analysis in Lengkeek would apply equally to Goal 9 and <br />commercial and industrial land inventories.) LUBA does suggest that, in certain circumstances <br />(i. e., where the acknowledged inventory itself anticipates and provides a methodology for updating <br />the land inventory beyond the planning horizon), a city could potentially continue business as usual <br />beyond the expiration of a lands inventory. The City of Tangent did not have that type of <br />inventory, however. And the CLS is not that type of inventory, either. <br />Accordingly, under Lengkeek, DLCD is correct that "where a comprehensive plan is <br />amended in a way that relies on an updated [Buildable Lands Inventory] BLI, that updated BLI <br />must be incorporated into the city's comprehensive plan." Lengkeek III. In short, the City and <br />applicant cannot rely on the expired Commercial Lands Study. <br />Before reviewing the -options available to the Commission, it is worth discussing <br />Commissioner Nicolello's question regarding a possible de facto moratorium. Commissioner <br />Nicolello asked whether a recommendation to deny the application based on the expired CLS <br />would violate ORS 197.524(1)(b). The statute provides that if a city has a "pattern or practice of <br />delaying or stopping the issuance of permits" for division of land or construction, it must adopt a <br />moratorium following the required procedures for doing so. In addressing the moratorium issue <br />in Lengkeek, LUBA acknowledged that a city is caught between a rock and a hard place in <br />City of Eugene • 125 E. 8th Ave. • Eugene, OR 97401 • 541-682-8447 • 541.682-5414 Fax <br />www.eugene-or.gov <br />{00201461;1 } <br />Exhibit 5 PC Agenda - Page 7 <br />