THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION <br />In Butte II, then, LUBA provided guidance and framework which the Eugene hearings <br />official and EPC could (and should) have used with respect to pedestrian safety on Oakleigh <br />Lane; i.e., adopting a condition of approval similar to the following: <br />"The applicant must submit as part of final PUD plat documents: <br />(1) A sufficient right-of-way or easement along the entire length of Oakleigh Lane <br />from the development to River Road, dedicated to the City, and adequate for the <br />sidewalk in (2) to be constructed, <br />(2) Construction plans, consistent with applicable City of Eugene standards, for a <br />sidewalk from River Road to Oakleigh Lane's terminus, and <br />(3) The necessary construction permits to implement the construction plans in (2)." <br />Note that this condition wouldn't have stated who or how to obtain the necessary right-or-way <br />or easements. Accordingly, this condition would be perfectly acceptable with respect to Dolan. <br />At the same time, the condition would ensure that the PUD wasn't developed unless Oakleigh <br />Lane were improved so that it had a sidewalk to provide for safe pedestrian access to and from <br />the PUD. <br />As a final consideration, multiple sections of Eugene Code include the proviso <br />"provided the city makes findings to demonstrate consistency with constitutional <br />requirements" (e.g., EC 9.8320(5)(b) and EC 9.6505(3)(b)). This proviso doesn't alter any of the <br />discussion above, since a condition that doesn't require an exaction of the applicant (or other <br />specific party) is inherently consistent with Dolan because "proportionality" is not an issue <br />when there is no exaction to apportion. <br />Thus far, Eugene staff, hearings officials and planning commissioners have missed this <br />point; and have instead viewed a condition of approval requiring an improvement (such as a <br />sidewalk), which they (incorrectly) believe is "infeasible," as just a "clever" ruse to kill a project. <br />Their inappropriate (and unlawful) approach has been to rely on their flawed understanding of <br />Dolan to justify not imposing a condition of approval that is sufficient to ensure safe access to <br />the PUD, thus putting the public at risk. <br />In the future, Eugene hearing officials and planning commissioners must insist that the <br />City Attorney and Planning staff provide to hearings officials and the EPC one or more <br />potential conditions of approval in the form shown above for the decision makers to consider. <br />Exhibits <br />A. Excerpts from EC 9.8320 <br />B. Excerpts from EC 9.6505 <br />C. Butte Conservancy v. City of Gresham, _ Or LUBA _ (LUBA No. 2005-150, January 26, <br />2006) (Butte I) <br />D. Butte Conservancy v. City of Gresham, 52 Or LUBA 550 (2006) (Butte II) <br />Page 18 <br />