Public Testimony (Opposition) - Laserfiche WebLink

THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION commissioners. The apparent reason is that city staff seem to view imposing a condition, such as requiring a sidewalk along all of Oakleigh Lane, as nothing more than a backhanded, technical maneuver by opponents to "kill" the project despite the city's formal approval. Rather than rebut this misguided view on principal - there's nothing "backhanded" about ensuring the public's safety before approving a PUD - a closer look at LUBA's analysis will make it clear that the HO and EPC should follow LUBA's reasoning instead of city staff's direction. Two cases that shed light on this issue are Butte Conservancy v. City of Gresham, _ Or LUBA _ (LUBA No. 2005-150, January 26, 2006) (Butte I) and Butte Conservancy v. City of Gresham, 52 Or LUBA 550 (2006) (Btctte II). (See Exhibits C and D.) These cases involved successive appeals of a decision that approved a PUD on a parcel in the City of Gresham. In order to gain approval of a requested variance because the primary PUD access was via a cul-de- sac longer than 200 feet, the developer proposed, and Gresham approved as a condition of approval, a secondary access road that would extend through an adjoining subdivision not owned or controlled by the applicant. Opponents claimed in both appeals that the adjoining subdivision had CC&Rs that prohibited construction of the proposed access road. In Btctte I, LUBA remanded the decision because Gresham had not made findings that the proposed secondary access road was feasible. On remand, Gresham adopted findings, in relevant part, that the elected officials of Gresham have the legal authority to condemn the right-of-way to provide secondary access, notwithstanding any CC&Rs. In Btctte II, LUBA affirmed Gresham's decision and provided clarification relevant to cases where a condition may turn out to be impractical, but which can still be imposed if the condition is necessary for conformance to an approval criterion and the condition is not precluded as a matter of law. Gresham's land use code has the following approval criteria for PUDs relevant to Butte I and II: "Section 9.0710 Approval Criteria In reviewing a proposed circulation plan, the approving authority shall find compliance with the relevant portions of the Community Development Code and the following: A. A future street plan shall: 2. Provide for the logical extension, continuation, and interconnection of streets, to serve circulation and access needs within a district, sub-area, or neighborhood; 3. Provide multi-directional access and circulation to the street system and shall avoid maze-like and discontinuous street patterns; and, 4. Balance traffic distribution within an area, rather than concentrating traffic on a few streets." Page 14