Eugene Hearing Official <br />March 5, 2018 <br />Page 8 <br />standard that "new dwellings be within a 4-minute response time for emergency medical <br />services" was deficient for failure to explain how the time is measured, that is, what assumptions <br />to make about traffic, time of day, and other variables. <br />(d) Conflicting standards may not be applied. <br />Sometimes standards conflict. In that event it is up to the decision maker to sort out the conflict <br />and make the ultimate policy choice. Making that choice frequently involves the exercise of <br />discretion the choosing between them, or balancing them in some fashion to arrive at a <br />decision. That exercise of discretion is the kind of action that is contrary to the statute. When <br />two standards conflict, neither can be applied in making the decision. <br />(e) Standards must allow a path to approval. <br />The statute anticipates that local clear and regulations will allow a path to approval. Standards <br />that are so stringent that they can't be met is a standard that may not be applied consistent with <br />ORS 197.307(6). LUBA explained this common sense principle in the Home Builders case, <br />where a storm water standard prohibited "negative impacts on natural drainage courses," which <br />LUBA agreed was clear and objective. However, it did not allow development. As LUBA <br />explained, <br />"We agree with petitioners, at least in the abstract, that imposing a clear and <br />objective standard that is impossible or virtually impossible to meet is a <br />prohibition in the guise of a standard ORS 197.307(3)(d) allows the city to offer a <br />discretionary approval track, "provided the applicant retains the option of <br />proceeding under the clear and objective standards[.]" That option is illusory if <br />the clear and objective standards are impossible to satisfy. It may not be the case <br />that LUCU 9.8325(10) is impossible to satisfy." <br />The statute anticipates that an applicant will be able to proceed to approval under clear and <br />objective standards, not be denied under clear and objective standards. <br />B. The City has not carried its burden to show that the South Hills Study refinement plan <br />was ever extended beyond the footprint of the city limits in 1974 when the SHS was <br />adopted by the City Council. <br />At pages 22-24 of our March 3, 2107 supporting narrative, we allege that the City may not apply <br />the South Hills Study (SHS) to this decision because the City has not shown that the SHS was <br />ever applied to the area that was outside the city limits when the SHS was adopted by the City <br />Council in 1974. Please see that discussion. To summarize the applicant's theory: <br />The City has the burden of proving what standards apply to any land use application. The <br />Eugene Hearing Official has explained that ORS 227.173 places this burden on the City. See <br />APP B - HEARING LTTR 3.5.2018 <br />