Eugene Hearing Official <br />March 5, 2018 <br />Page 6 <br />In summary, the City has not explained a lawful basis for applying any discretionary standards in <br />its review of this PUD over the objection of the applicant. <br />6. The bulk of the standards the City seeks to apply are not clear and objective in the <br />meaning of the statute. <br />Included with this letter is a spreadsheet that lists standards in EC 9.8320 that are not clear and <br />objective in the meaning of the statute. Note that the spreadsheet also lists some plan policies, <br />which are addressed in the narrative statement, but that are not themselves mandatory standards <br />for one reason or another. <br />The spreadsheet lists at the top five alternative reasons why a standard might not be sufficiently <br />clear and objective to be applicable. We elaborate on those six categories here. <br />(a) Standards are not clear and objective if they involve subjective judgments or the <br />exercise of discretion. <br />Generally, standards for approval of housing are clear and objective within the meaning of ORS <br />197.307(6) if the local government demonstrates that they do not impose "subjective, value- <br />laden analyses that are designed to balance or mitigate impacts of the development." Rogue <br />Valley Association of Realtors v. City of Ashland, 35 Or LUBA 139, 158 (1998), aff'd, 158 Or <br />App 1 (1999). <br />Provisions generally granting a city discretion to impose conditions "if it is deemed necessary to <br />mitigate any potential negative impact caused by the development" violate the "clear and <br />objective" requirement in ORS 197.307(6). Rogue Valley, 35 Or LUBA 139, 159 (1998). <br />(internal quotation omitted); Home Builders Association of Lane County v. City of Eugene, 41 Or <br />LUBA 370, 388-389 (2002) (quoting Rogue Valley). <br />A requirement that replacement trees be "similar in resource value" as the trees to be removed is <br />not clear and objective. Rogue Valley, 35 Or LUBA at 160. <br />Code language calling for developments to "minimize" possible conflicts between pedestrians <br />and vehicles, "where necessary for traffic circulation," impermissible posed "vague <br />requirements" granting the city "considerable discretion in approving or denying needed <br />housing." Home Builders Association, 41 Or LUBA at 399-400. <br />A provision allowing the city to require, as a condition of approval, dedication of public ways "to <br />facilitate community needs," impermissibly afforded the right to determine community needs. <br />Home Builders Association, 41 Or LUBA at 403-404. <br />Language allowing the city "to require additional right-of-way or other improvements to develop <br />transit facilities `where a need' for such facilities `has been identified"' flunks the test. Home <br />Builders Association, 41 Or LUBA at 409. <br />APP B - HEARING LTTR 3.5.2018 <br />