AttachmentA <br />EugenePlanningCommission <br />December 11, 2013 <br />Page2 <br />findings explaining (1) whythose policies are orare notmandatory approval criteria, and (2) <br />whether the policiesrequire anyadditional considerationeven ifthey arenot mandatory approval <br />criteria. If the Planning Commission determinesthat consideration ofthose policiesis not <br />required, the PlanningCommission could also choose to make alternative findings that, even <br />though consideration of the policies is not required, approval of the PUD is nonetheless <br />consistent with those policies. <br />2.Exaction Primer <br />In order to approve any proposed development, the local decision maker must be able to <br />point to sufficient evidence and rationale demonstrating that each and every approval criterionis <br />satisfied. If an approval criterion is not or cannot be satisfied, then theapplication should be <br />denied. Sometimes a particular approval criterion can be satisfied, but onlyifa condition of <br />approval is imposed. <br />Where that condition of approval is the requirement that an applicant or property owner <br />dedicate land for public use, the local government must makeconstitutional findings justifying <br />the exaction (often referred to as Dolan findings). The findings must demonstrate, first, that <br />there is a legitimate state interest justifying the imposition of the exaction. Second, the local <br />government must demonstrate that there is a nexusbetween the permit conditionand a legitimate <br />state interest. I.e., the condition being imposed actually serves or furthers the valid public <br />purpose. Finally, the local government must demonstrate that the exaction and the anticipated <br />government cannot require a developer of a duplex to construct a new three-lane highway, <br />because the condition imposed would have absolutely no relationship to the amount of traffic to <br />be generated by the proposed development. <br />In this case, Public Works staff provided Dolan findings on public interest, nexus and <br />rough proportionality justifying the dedications thatthe City was requiring of the applicant. The <br />findings are very formulaic. Theyidentify the public interest in having a 45-foot right of way <br />dedication (PW Referral Comment at 2), the necessary nexus between the required dedication <br />and the public interest (PW Referral Comment at 3, first full paragraph), and explain how the <br />dedication is roughly proportional to the anticipated impacts of the proposed development (PW <br />Referral Comment at 3, secondparagraph). A similar analysis is done for the pedestrian and <br />bicycle dedication (PW Referral Comment at 4). The Hearings Official and the applicant point <br />out thatthe Dolan findings do not state thatthe roadway will be unsafeunless it is improved <br />now; rather, they state that safe vehicular, bicycle, pedestrian and emergency access will be at <br />risk in the future withoutthe required dedication. The findings point out that this is the last <br />opportunity the City will have to require the dedication needed for any future street construction. <br />Further, the Dolan findings do not even attempt to justify requiring thatthe applicant <br />actuallyconstruct or improve the road, onlythat the applicant dedicate portions of its land for a <br />public right-of-way. Had the applicant been required to improve Oakleigh Lane, the City would <br />have needed to provide similar findings justifying that requirement. <br />00108854;1 } <br />295