Applicant's Final Written Argument <br />Lombard Apartments <br />July 23, 2018 <br />Page 8 of 12 <br />Commission. Each hearings body has the authority to judge an application under state <br />constitutional law, statutory law, case law, and local law. That is the quasi-judicial nature of <br />these types of applications. The City Council has delegated its review authority to both the <br />hearings official and the Planning Commission. It has thereby granted you and the Planning <br />Commission the authority to determine the applicability and enforceability of a particular code <br />provision based on state or federal law. This is not a novel concept. Local governments are <br />often tasked with not applying particular land use regulations adopted by the City Council to <br />a particular application or applicant. One such example is the "reasonable accommodation" <br />requirements of the Federal Fair Housing Act, codified in 42 U.S.C. Sections 3601-3619. <br />Another example is the "Equal Terms" provision of the federal Religious Land Use and <br />Institutionalized Persons Act, codified as 42 U.S.C. Chapter 21C, that requires a local <br />government to allow certain land uses not otherwise allowed in a particular zoning district <br />when other similar, nonreligious uses are allowed in that particular zoning district. Oregon <br />Measure 49 requires local governments to waive particular land use regulations under certain <br />circumstances even when such regulations are by themselves facially valid. <br />The City Attorney argued in its 2016 memo that "[t]he [city] council is presumed to <br />have known of [t]he `clear and objective' requirement and adopted a provision that was in <br />compliance with it." One of the many difficulties with this statement is that it does not take <br />into account the fact that while a provision may be facially clear and objective, as applied it is <br />not. See Rogue Valley Assn of Realtors v. City ofArhland, 158 Or App 1, 4 1999), citing Benson v. <br />City of Portland, 119 Or App 406, 410 rev. den. 318 Or 24 (1993) ("To succeed [in a facial <br />challenge to a legislative enactment] petitioner must demonstrate that the provisions are <br />ed under any circumstances where <br />categorically incapable of being clearly and objectively appli <br />they may be applicable." (emphasis in original). The prime example is the 19-lot rule of the <br />"Chamotee Trails" application as analyzed in Wlalter v. City of Eugene, 74 Or LUBA 671 (2016). <br />There are circumstances where in one context a provision may appear to be clear and <br />objective, but through the quasi-judicial application process, it becomes apparent that there <br />may be multiple plausible interpretations. Another example is the Needed Housing <br />prohibition for "grading" on slopes 20% or greater in the "Furtick" application. While LUBA <br />held that the measurement of the grade is a clear and objective exercise, the determination of <br />what is "grading" was open to interpretation and therefore is not clear and objective. <br />The City Attorney's position is contrary to the practice of City staff. At the hearings <br />official public hearing when you asked staff if the City has implemented your holding in the <br />"North Delta PUD" decision regarding the applicability of the Eugene Code provisions that <br />make TLAs applicable to PUDs, staff indicated that staff have so abided by your determination <br />that no TIA review is required in Needed Housing PUD applications. <br />Since there is no possible way for a City Council to contemplate every situation, it is <br />not uncommon for code provisions to not be clear and objective. Again, the 19-lot rule <br />appears to be facially clear and objective, but as applied to a particular application it was not <br />so. <br />5 .al 1 t~. e . 5 . , _,fP) <br />I , <br />zcC?':a; "~'N<If ~'1 r'1.:.15P f❑IT I 1 :-1=. 11'Hc"r -i fr~f)1 <br />