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PUBLIC COMMENTS (as of 8-8-17)
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PDT 17-1
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PUBLIC COMMENTS (as of 8-8-17)
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Last modified
8/8/2017 10:16:22 AM
Creation date
8/8/2017 10:16:18 AM
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PDD_Planning_Development
File Type
PDT
File Year
17
File Sequence Number
1
Application Name
CAPITAL HILL PUD
Document Type
Public Comments
Document_Date
8/8/2017
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Yes
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objective criteria does not allow the applicant to waive or not comply with the subjective criteria <br />under the alternative approval process (i.e., the General Track). <br />The Needed Housing statute does not require that an application for needed housing be <br />approved for every specific property. If the applicant cannot satisfy the clear and objective <br />criteria contained in the CityÓs code, then LUBA has explained that the applicant has three <br />options. In Home Builders AssÓn v. City of Eugene, LUBA explained that an applicant who <br />cannot Ðavoid denial for failure to meet all clear and objective standardsÑ has three potential <br />options.Home Builders AssÓn v. City of Eugene, ___ OR LUBA ___ (LUBA No. 2001-059 Feb. <br />28, 2002). The applicant can (1) Ðmodify the application so that it meets all clear and objective <br />standards.Ñ Id.The applicant can (2) apply under a different procedure, if available. Id. <br />(discussing a discretionary adjustment procedure). Finally, the applicant can (3) do nothing and <br />allow the application to be denied.Id. <br />An applicantÓs failure to satisfy all clear and objective criteria as it relates to a particular <br />application for a unique property is not a basis for finding that the CityÓs criteria runs afoul of <br />ORS 197.307(6)(a). It just means that the application, as submitted, must be modified, applied <br />for under the alternative track, or be denied. If, as is the case here, the applicant seeks approval <br />under the alternative process (here, referred to as the General Track, see EC 9.8320), then the <br />applicant must satisfy the subjective criteria contained therein. The applicant Ðretains the option <br />of proceeding Ñ under the Needed Housing Track (EC 9.8325). The fact that such an option may <br />lead to a denial is a result of applying the CityÓs clear and objective standards to a particular <br />piece of property. Some property is capable of greater development than others when it comes to <br />EC 9.8325(3) (30-foot landscape buffer), EC 9.8325(5) (prohibition on grading on 20% or <br />greater slopes); and EC 9.8325(12)(a) (prohibition on development over 900-feet). The simple <br />fact that these clear and objective standards result in fewer development opportunities for this <br />particular property does not in and of itself violate the Needed Housing statute. <br />However, if the particular clear and objective standard is one that could not be satisfied in <br />all instances (i.e., on any property), then such a clear and objective standard would violate ORS <br />197.307(6)(a) because the applicant for a PUD could ever satisfy the standard. Such a situation <br />occurred in Home Builders, slip op at 48. There, a stormwater runoff provision that was clear <br />and objective prohibited a PUD from creating Ðnegative impacts on natural drainage courses.Ñ <br />Id. Because rain falls on all developments and all rain transports some pollutants, the standard <br />would be violated in all instances.See id. (ÐPetitioners submit that rain falls on all development, <br />and all water moving across ground carries some sediment, creates some turbidity, and has some <br />erosional component, no matter how minute, and therefore no PUD could possibly comply with <br />LUCU 9.8325(10).Ñ). LUBA agreed with the petitioners in Home Builders, Ðat least in the <br />abstract, that imposing a clear and objective standard that is impossible or virtually impossible to <br />2 <br />meet is a prohibition in the guise of a standard.Ñ Even though the City had a discretionary <br />approval track (i.e, the General Track), LUBA found that such an Ðopti on is illusory if the clear <br />and objective standards are impossible to satisfy.Ñ Here, the circumstances are distinguishable <br />2 <br />LUBAÓs conclusion was somewhat complicated by the fact that LUBA determined that Ð\[i\]t <br />may not be the case that LUCU 9.8325(10) is impossible to satisfy,Ñ but the city did not <br />Ðrespond to \[the\] assignment of error at all.Ñ Slip op at 48. <br />2 <br /> <br />
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