Applicant's Final Written Argument <br />Lombard Apartments <br />July 23, 2018 <br />Page 7 of 12 <br />imposing a state requirement that all housing development within a UGB must be evaluated <br />under clear and objective standards, conditions and processes unless the City has an alternative <br />track and the applicant chooses to proceed under that alternative track. <br />Not only must standards, conditions and procedures by clear and objective, but ORS <br />197.307(4)(b) requires that standards, conditions, and procedures may not have the effect of <br />discouraging needed housing through unreasonable cost or delay. Requiring an application to <br />be filed, paid for, and processed over six months flunks the unreasonable cost and delay test <br />when, as here, the city has no standards that it may apply under state law. <br />c. Response to City Attorney's July 16, 2018 Memorandum <br />The City Attorney's office provided a 4 '/Z page memorandum that doubled down on <br />the City Attorney's previous opinion memorandum, dated February 17, 2016, to the Planning <br />Commission. In the 2016 memo the City Attorney's Office took the position that the Planning <br />Commission did not have the authority to determine whether a Eugene Code provision is not <br />clear and objective. In this most recent memo the City Attorney takes the position, in footnote <br />1, that the Hearings Official also does not have such authority. Such a proposition is not <br />supported by law or logic. <br />The Home Builders briefed this issue in their post-hearing submittal and included the <br />City Attorney's 2016 memo that expounded its opinion that the Planning Commission's hands <br />are tied. In this recent memo the City Attorney is being explicit that the hearings official is <br />similarly limited. <br />State statutes always apply directly to land use decisions. McKay Creep Malley Assoc. P. <br />Wlashington County, 18 Or LUBA 71, 75 (1989). Applying relevant statutes is a basic obligation <br />of the City - whether the hearings body is staff, the hearings official, the Planning Commission <br />or City Council. The applicant is entitled to the benefit of relevant statutes in this <br />proceeding. The City Attorney position, that the applicant must weather the time and cost of <br />this city process without any prospect of getting its statutory entitlements from local decision <br />makers is itself a position that is contrary to the prohibition against procedures that result in <br />unreasonable cost and delay. ORS 197.307(4). <br />Next, ORS 197.307 on its face applies directly to local governments and does not make <br />a distinction between which levels of local government are reviewing the application for <br />housing. While only a local governing body may adopt land use regulations, there is no explicit <br />or implicit prohibition on a lower local governmental hearings body making a determination <br />that a standard is not clear and objective (or whether a standard, condition or procedure or a <br />combination of such, has the effect of discouraging needed housing through unreasonable <br />cost or delay). <br />Such a determination of whether a particular code provision does or does not violate <br />the commands of ORS 197.307 is a fundamental duty of the hearings official and the Planning <br />0 `c'_ :-i'lo-~- Jill ?1.. .i,:5 •a I'1 r4-.. 5.. '...,(I <br />_Fr:a 7 ~t,r,a I :.isa r;, r t) Fr.nr Q ":101 <br />e.r~ccni~ndu~c. porn <br />