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PDT 17-1
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Public Testimony (Opposition)
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Last modified
4/25/2018 9:08:26 AM
Creation date
3/7/2018 11:42:49 AM
Metadata
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Template:
PDD_Planning_Development
File Type
PDT
File Year
17
File Sequence Number
1
Application Name
CAPITAL HILL PUD
Document Type
Public Testimony
Document_Date
3/7/2018
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Yes
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1 Neither Condition 7 nor any of the city findings cited to us discuss whether it is feasible to <br />2 obtain the required access. Petitioners raised the issue of the feasibility of providing secondary <br />3 access below, and presented evidence suggesting that such access may not feasible. The city made <br />4 no effort to address those arguments. When an issue is raised regarding the feasibility of conditions <br />5 of approval to ensure compliance with approval criteria, the local government cannot simply ignore <br />6 the issue. Nor can the local government simply impose the disputed condition as a performance <br />7 standard and rely on a later staff review that does not provide notice and opportunity for hearing to <br />8 ensure compliance with approval criteria. Hodge Oregon Properties, LCC v. Lincoln Cty., 194 <br />9 Or App 50, 55-56 (2004) (county erred in imposing conditions requiring fire breaks and water <br />10 supply for a dwelling without finding those conditions feasible or providing notice and opportunity <br />11 for hearing where the issue of feasibility can be addressed); Thomas v. Wasco County, 30 Or <br />12 LUBA 302, 311 (1996) (imposition of conditions does not excuse the local government from first <br />13 establishing that the approval criterion can be satisfied). Remand is necessary for the city to address <br />14 the issue and either establish that providing secondary access is feasible or ensure that a forum with <br />15 notice and opportunity for hearing is provided to address that issue. <br />16 The second assignment of error is sustained. <br />17 THIRD ASSIGNMENT OF ERROR <br />18 CDC 5.0232 provides "[a]ny removal of trees which would result in clear cutting is <br />19 prohibited on land within the [WO]."' CDC 3.0010 defines "clear cutting" as: <br />20 "Any tree removal which leaves fewer than an average of one tree per 1,000 square <br />21 feet of lot area, well distributed throughout the entirety of the site. * * <br />22 In order to determine whether a proposed development meets the requirements of CDC <br />23 5.0232, the city requires an applicant to submit data regarding its tree removal plan. CDC 9.1011 <br />24 provides: <br />a CDC 9.1010(F) also provides that "[a]ll tree removal that would result in clear cutting on slopes in excess of <br />15% is prohibited." <br />Page 11 <br />
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