“(a) May include, but are not limited to, one or more provisions regulating the <br />density or height of a development. <br />“(b) May not have the effect, either in themselves or cumulatively, of <br />discouraging needed housing through unreasonable cost or delay. <br />“* * * * * <br />“(6) In addition to an approval process for needed housing based on clear and <br />objective standards, conditions and procedures as provided in subsection <br />(4) of this section, a local government may adopt and apply an alternative <br />approval process for residential development based on approval criteria <br />regulating, in whole or in part, appearance or aesthetics that are not clear <br />and objective if: <br />“(a) The applicant retains the option of proceeding under the approval <br />process that meets the requirements of subsection (4) of this <br />section; <br />“(b) The approval criteria for the alternative approval process comply <br />with applicable statewide land use planning goals and rules; and <br />“(c) The approval criteria for the alternative process authorize a density <br />at or above the density level authorized in the zone under the <br />approval process provided in subsection (4) of this section.” <br /> The applicant and the Homebuilders Association of Lane County argue that the Willamette <br />Greenway approval criteria are not clear and objective standards and therefore the City may not <br />4 <br />apply them to the needed housing application. There does not seem to be much doubt that the <br />Willamette Greenway standards of EC 9.8815 are not clear and objective. For instance, EC <br />9.8815(1) and (2) both require a proposal to provide attributes to “the greatest possible degree.” <br />This is an inherently unclear and subjective standard. I agree with the applicant’s analysis in its <br />July 23, 2018 memorandum explaining why the EC 9.8815 approval criteria are not clear and <br />objective. The real issue is not so much whether the Willamette Greenway approval criteria are <br />clear and objective but whether they must be applied despite not being clear and objective. <br /> Initially, the Assistant City Attorney (ACA) argues that a Hearings Officer does not have <br />the authority to determine that the City may not apply approval criteria to a proposed needed <br />housing application. According to the ACA: <br />4 <br />The applicant and the Homebuilders Association of Lane County make complementary arguments regarding whether <br />the Willamette Greenway approval criteria may be applied to the application. For convenience and brevity I will just <br />refer to these arguments as the being made by the applicant. <br />Hearings Official Decision (WG 18-3/SR 18-3/ARA 18-8) 9 <br /> <br />