Eugene Hearing Official <br />April 6, 2018 <br />Page 10 <br /> <br />(6) In addition to an approval process for needed housing based on clear and <br />objective standards, conditions and procedures as provided in subsection (4) of <br />this section, a local government may adopt and apply an alternative approval <br />process for applications and permits for residential development based on <br />approval criteria regulating, in whole or in part, appearance or aesthetics that are <br />not clear and objective if: <br />(a) The applicant retains the option of proceeding under the approval <br />process that meets the requirements of subsection (4) of this section; <br /> <br />The applicant has invoked its right to clear and objective standards. The applicant has shown <br />that no PUD can be approved on this site under the Needed Housing track standards in EC <br />9.8325. Neither the city staff nor the opponents has shown that some PUD can be approved on <br />this site under EC 9.8325. As a result, the statute prohibits the City from applying any <br />discretionary standards. The applicant applied under the General Track; the statute prohibits the <br />City from applying any discretionary standards in the General Track. After the discretionary <br />standards in EC 9.8320 are removed from the table by operation of ORS 197.307(6), the City <br />simply needs to apply the remaining standards in EC 9.8320 General Standards track that are <br />clear and objective. <br /> <br />Mr. Malone has failed to offer an explanation of how ORS 197.307(6)(a) operates in this <br />situation, as have the City Attorney and City staff. <br /> <br />Dropping back to a higher elevation on this, the applicant appreciates there is no reported case <br />applying the Needed Housing Statute exactly as the applicant requests here. Using a mountain <br />bike metaphor here, Eugene is the only -City that we are aware of one that has <br />discrete tracks for PUDs with discretionary versus clear and objective standards. Our March 5 <br />Hearing Memorandum discusses a few of the cases in which LUBA has prohibited - <br />ards when an applicant invokes the statute. See <br />the recent Group B decision in Corvallis. Furthermore, there are situations in Eugene where <br />LUBA has pruned the Needed Housing track to eliminate standards that are not actually clear <br />and objective. See the recent Walter decision. All those cases just apply the plain language of <br />the statute; that is what the applicant requests here. <br /> <br />To editorialize just a smidge, this dilemma for the City is of its own making. When the City <br />adopted the Multi-Track model in 2001, it failed to adequately test ride the Needed Housing <br />track standards to ensure that any landowner with South Hills property who invoked her statutory <br />rights would actually be able to get some kind of a PUD approval. The City adopted Needed <br />Housing standards that are simply too stringent to allow development on each site in the City that <br />requires a PUD approval. As LUBA pointed out in the Home Builders challenge to the 2001 <br />code update, sometimes compliance with the statute needs to be tested in the context of a site- <br />specific application rather than in a facial challenge to the ordinance. See Home Builders Assn. <br />of Lane County v. City of Eugene, 41 Or LUBA 370, 423 (2002). This is one of those situations. <br />The zoning regulations that apply here show that the applicant does not have an avenue in the <br />code to get a PUD approval on this site under clear and objective standards. Hence, the statute <br /> <br /> <br />