THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION <br />Ensuring safe access to a proposed development does not require exaction from the applicant <br />By Paul Conte <br />Earth Advantage Accredited - Sustainable Homes Professional <br />Version 1; May 6, 2018 <br />Summary <br />This paper attempts to dispel some apparent confusion among City of Eugene staff and officials <br />regarding the legal distinction between requirements for "conformance" and imposition of <br />"exactions." Specifically, this paper distinguishes between a condition of approval that requires <br />that there be street improvements to ensure safe access to a Planned Unit Development <br />(conformance) and a condition of approval that requires the developer to implement off-site <br />street improvements that are necessary to provide safe access (exaction). <br />I use a highly simplified example of the proposed Oakleigh Meadow Cohousing (OMC) <br />Planned Unit' development review process to illustrate how City of Eugene legal and planning <br />staff have a fundamental misunderstanding of conformance versus exaction, which they then <br />impart to hearings officials and the Eugene Planning Commission (EPC) during the quasi- <br />judicial approval process. As a result, some Planned Unit Development (PUD) approvals <br />needlessly and improperly fail to adequately ensure safe access to the PUD. <br />Background <br />In past land use decisions, particularly for proposed Tentative PUDs, Eugene hearings officials <br />and the EPC have incorrectly addressed certain mandatory approval criteria that require there <br />to be safe access to and from a proposed PUD. The fundamental error has resulted from a <br />mistaken belief, mostly originating with city staff, that constitutional constraints on exaction <br />(specifically the "proportionality" standard established by Dolan v. City of Tigard, 512 U.S. 374) <br />prohibit the imposition of necessary and appropriate conditions of approval to ensure safe <br />access. <br />The City's deliberations and findings on the proposed Oakleigh Meadow Co-housing <br />(OMC) PUD illustrate this error.z Oakleigh Lane is a narrow, unimproved, dead-end road that <br />would provide the proposed PUD its only means of access for motorized vehicles, bicyclists, <br />pedestrians (including individuals with sight, hearing or other impairments, young children <br />and elderly), and wheelchair users. <br />The proposed PUD site is adjacent to about 50 feet of the very last section of Oakleigh <br />Lane (i.e., at Oakleigh Lane's terminus, which is approximately 1,000 feet from the lane's <br />See city file PDT 13-1. <br />This document doesn't attempt to address numerous other contested issues related to the safety and <br />capacity of Oakleigh Lane. As of March 2018, the OMC Tentative PUD application is under appeal to <br />the Court of Appeals for the third time. <br />