City Attorney Comments 7-16-18 - Laserfiche WebLink

Fred Wilson July 16, 2018 Page 3 \[sic\] with local plans and policies, preservation of the natural vegetation fringe along the river, and the Greenway objectives set forth in Goal 15.” The Metro Plan incorporates the requirements of Goal 15 through its Willamette River Greenway, River Corridors, and Waterways Element. The Willamette Greenway Permit approval criteria located in the Eugene Code (EC 9.8815) implement the requirements of Goal 15, ORS 390.314 and the Metro Plan, including the following specific language required by Goal 15: “to the greatest possible degree, the intensification, change of use or development will provide the maximum possible landscaped area, open space or vegetation between the activity and the river” and “to the greatest possible degree, necessary and adequate public access will be provided along the Willamette River by appropriate legal means.” Senate Bill 1051 / Clear and Objective Standards Prior to the 2017 passage of Senate Bill 1051, ORS 197.307(4) and the Willamette Greenway laws were written to work in concert. The law is clear that housing proposed for development within the Greenway is not on “buildable land” and the pre-2017 version of ORS 197.307(4) required that local governments “adopt and apply only clear and objective standards, conditions and procedures regulating the development of needed housing on buildable land\[.\]” (Emphasis added). OAR 660-08-0005(2) defines “buildable land” as “residentially designated land within the urban growth boundary, including both vacant and developed land likely to be redeveloped, that issuitable, available and necessary for residential uses…\[l\]and is generally considered ‘suitable and available’ unless it…\[i\]s subject to natural resource protection measures determined under 15 Statewide Planning Goals 5, 6, , 16, 17, or 18\[.\]” (Emphasis added). Land located in the Greenway is subject to Goal 15 natural resource protection measures, so local governments are not required to consider it “suitable and available for residential use.” Therefore, prior to the passage of SB 1051, the application now before you was clearly not entitled to clear and objective standards. There is no indication that the legislature intended to change this when it passed SB 1051 with a revised version of ORS 197.307(4) that does not include the reference to “buildable land.” The applicant and Home Builders urge the Hearings Official to choose between compliance with two competing state law directives. The City’s position, instead, is that no such choice is 1 required. The exception from clear and objective standards for housing within the Greenway The City has consistently maintained the position that once the City Council adopts a code 1 provision only the Council (through a code amendment) or an authority hierarchically above it (LUBA or a court), can void or choose not to apply that code provision. Neither city staff, the {00285705;2 }