Eugene Planning Commission <br />September 19, 2013 <br />Page 2 <br /> <br /> <br />some of the approval criteria in EC 9.8320 are not clear and objective and therefore <br />cannot be applied to the applicant. <br /> <br />The approval criteria in EC 9.8320 are not intended to be clear and objective. Rather, <br />the criteria included in EC 9.8320 are intended to be discretionary, as allowed by ORS <br />197.307(6). As noted above, PUD applicants have the choice to proceed under the <br />clear and objective criteria contained in the EC 9.8325 “needed housing track” rather <br />than the discretionary criteria contained in the EC 9.8320 “general track.” Applicant <br />here chose to proceed under the discretionary criteria contained in the EC 9.8320 <br />“general track.” Applicant now builds a straw man by arguing that that clearly criteria in <br />EC 9.8320 are not clear and objective. If the applicant wanted clear and objective <br />criteria, the applicant could have chosen to proceed under the clear and objective <br />criteria contained in the EC 9.8325 “needed housing track.” <br /> <br />At bottom, applicant’s arguments boil down to the assertion that ORS 197.307(4) <br />requires clear and objective standards that also allow a path to approval of the <br />applicant’s chosen development. Applicant cites to the Land Use Board of Appeals’ <br />(LUBA’s) opinion in Home Builders Association of Lane County v. City of Eugene, for <br />the proposition that “a clear and objective standard that is impossible or virtually <br />impossible to meet is a prohibition in the guise of a standard” and the option of <br />proceeding under a clear and objective standards “is illusory if the clear and objective <br />standards are impossible to satisfy.” 41 Or LUBA 370, 420 (2002). However, for the <br />reasons explained below, LUBA’s opinion in Home Builders is not applicable here. <br /> <br /> <br />The portion of the opinion in Home Builders to which the applicant cites, concerned a <br />storm water standard that LUBA determined was clear and objective, but the petitioners <br />in that case argued was objectively impossible to satisfy. Therefore, the petitioners <br />argued, because no PUD applicant could satisfy the clear and objective storm water <br />standard, every PUD applicant would be forced out of the clear and objective track and <br />into the discretionary track. LUBA concluded that the option of proceeding under a <br />clear and objective standards “is illusory if the clear and objective standards are <br />impossible to satisfy.” 41 Or LUBA 370, 420 (2002). <br /> <br />However, in contrast to the situation posited in Home Builders, the clear and objective <br />criteria of EC 9.8325 are not impossible for every PUD applicant to satisfy. They simply <br />prevent this applicant from developing this site with this applicant’s chosen development <br />and utilizing clear and objective standards. The characteristics of this particular <br />development site (slope, elevation, etc.) prevent this particular applicant from <br />constructing the specific development of his choice while utilizing the clear and objective <br />criteria in EC 9.8325. However, the applicant can (and has to chosen to) proceed under <br />the discretionary standards of EC 9.8320. <br /> <br /> <br />{00273486;1 } <br /> <br />