Hearings Official Decision - Laserfiche WebLink

“The City has consistently maintained the position that once the City Council adopts a code 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 planning commission, nor the hearings officer have the legal authority to choose to ignore or override land use approval criteria adopted by the City Council.” ACA July 16, 2018 Memorandum 3-4 fn 1. The ACA memorandum does not explain the basis for this assertion, but it appears to be based on the reasoning in a memorandum from another ACA in the Chamotee Trails PUD (PDT 5 15-1) case (Chamotee Trails Memorandum). The Chamotee Trails Memorandum states that the Planning Commission (and now extended to the Hearings Official) “does not have the authority to determine a provision is not clear and objective.” Id. at 1. The Chamotee Trails Memorandum explains the basis for this conclusion: “The City Council adopted the 19-lot rule and the remainder of the needed housing PUD criteria by ordinance. Section 48 of the Eugene Charter provides that ‘all acts by the city or any of its officers, employees or agencies shall be presumed valid * * * Any action by this charter committed to the discretion of the council, when taken, shall be final and shall not be reviewed or called into question elsewhere.’ At the time the 19-lot rule was adopted into the new land use code, the statutory ‘clear and objective’ requirement was in effect. The council is presumed to have known of this requirement and adopted a provision that was in compliance with it.” I tend to agree with this analysis. If the City Council (or the Planning Commission in my case) has determined that a particular provision is clear and objective, absent some extraordinary circumstances that I cannot think of, I should be bound by that determination unless and until a higher body determines differently. The situation described in the Chamotee Trails Memorandum, however, is not the situation in the present case. The City Council has adopted clear and objective standards for different housing applications – the Needed Housing Track. The City Council has also adopted standards involving discretion for those housing applications – the General Track. The 19-lot rule was adopted under the clear and objective standards of the Needed Housing Track. I agree with the other ACA that the City Council had determined that the 19-lot rule was clear and objective so the Planning Commission and Hearings Official should defer to the City Council. If for instance, the applicant were arguing that any of the Needed Housing Track site review approval 5 The memorandum was submitted into the record by the Homebuilders Association of Lane County. Hearings Official Decision (WG 18-3/SR 18-3/ARA 18-8) 10