THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION <br />Lane is one of the improvements necessary for the application to conform to EC 9.8320(5)(a) <br />and (b).s <br />In their "staff report" and during deliberations, City staff presented Dolan limitations on <br />"proportionality" as part of their advice to the hearings official and EPC to not require the <br />applicant to provide necessary street improvements, including sidewalks, for the entirety of <br />Oakleigh Lane. That advice led to the HO and EPC to not imposing any condition of approval to require <br />a sidewalk.9 <br />The city staff were correct that the City could not require the applicant to construct <br />approximately 1,000 feet of sidewalk when only 50 feet would be along the portion of the street <br />adjacent to the PUD. That scale of exaction would clearly be disproportional, even though the <br />PUD would comprise more than fifty percent of the dwellings on Oakleigh Lane. <br />The city staff erred, however, in making a non sequitur assumption that the HO and EPC <br />shouldn't consider a full-length sidewalk as a necessary condition of approval for the proposed <br />PUD to conform to the EC 9.8320(5)(a) and (b) and 9.6505(3)(b) criteria. The staff, and the HO <br />and EPC following staff's advice, appeared to believe such a condition would run afoul of <br />Dolan. Notably, neither the City Attorney nor Planning Division staff ever walked the HO or <br />commissioners through the possibility of imposing a condition for a sidewalk without requiring <br />the developer himself to fulfill the condition by obtaining the necessary right-of-way and <br />constructing the sidewalk. <br />Contrary to the staff (and HO and EPC) assumption, the Oregon Land Use Board of <br />Appeals (LUBA) has found that requiring conformance doesn't require or imply exaction - a <br />condition of approval requiring that street improvements be in place is allowed if there are <br />adequate findings that the improvements are necessary to conform to a mandatory approval <br />criteria. Critically, LUBA's findings allow such a condition of approval, even if the ultimate <br />effect may be that the applicant won't be able, or won't choose, to fulfill the condition, and the <br />PUD is never developed. <br />The reasoning underlying LUBA's findings is very simple: an approval criterion <br />regarding public safety must be satisfied; and, unless it is satisfied, the PUD shouldn't and can't <br />be developed. The fact that it may turn out to be impossible or impractical for a particular <br />application to meet a condition of approval doesn't alter that fact at all. <br />Before getting into more details of relevant LUBA cases, it bears considering why this <br />obvious principle seems to have eluded Eugene city staff, hearings officials and planning <br />Opponents argued other improvements were also necessary, but I just use sidewalks as an example to <br />simplify the discussion. <br />This is a highly distilled version of all the issues and arguments, but it captures an essential element of <br />the City's misapplication of Dolan. Much of what transpired during the OMC PUD proceedings <br />occurred during discussions that were part of deliberations, but not explicitly documented in the HO <br />and EPC final orders. Regardless how the HO and EPC came to their decisions not to require a <br />sidewalk, the end result was the same - pedestrians would be at risk because they must share the <br />travel lane with a significant increase in the number of moving vehicles on Oakleigh Lane. <br />Page 13 <br />