Decision - Laserfiche WebLink

Hearings Official Decision (PDT 24-1; ST 24-3) 11 “In our hearing letter we included a Map H-3 and suggested it could be the final, consolidated Goal map that exited the acknowledgment process. As staff correctly points out in their July 31 memorandum, the applicant has not been able to trace the pedigree of the H-3 map to any verification of acknowledgement.” (Bill Kloos August 14, 2024 Applicant’s Written Response Testimony, page 18, footnote 2.) The applicant’s response testimony does not further address its previous argument that the property is not on the acknowledged Goal 5 inventory. Instead, the applicant argues that the subject property was acknowledged as a Goal 5 resource during the 1982 Metro Plan Goal 5 acknowledgment, and that any argument to the contrary constitutes a collateral attack on the 1982 acknowledgment.13 Staff’s July 31, 2024 memorandum does state that the Map H-3, upon which the applicant originally relied, “was not a part of the City’s acknowledged Goal 5 inventory as formally adopted by Ordinance 20351 or any other formal adoption process known to staff or otherwise demonstrated as a matter of record by the applicant.” Relying on the staff report language cited above, the staff memorandum continues: “The applicant does not present any evidence to refute the [staff report language], nor does the applicant provide any evidence that supports Kloos’ argument that the April 12, 1978, Scenic Sites Working Paper is not acknowledged. Staff considers the subject property’s Goal 5 status due to its location on the Scenic Sites map as a settled matter according to the prior Tentative PUD approval (PDT 18-4), wherein the record shows that the applicant agreed with the subject property’s Goal 5 status according to the Scenic Sites Map. * * *.” The staff memorandum again includes a depiction of the generalized map on which it relies (which is not labelled but to which staff refer to as “Map H-2”) to show that the subject property is within the general depiction on that map of property referenced in the 1978 working paper. 13The applicant’s attorney also asserts that “the dispute over the meaning of [EC 9.8325(3)] is sufficiently ambiguous that is may not be applied at all.” Presumably, what he means is that because there is disagreement over what, if any, Goal 5 resource was acknowledged, the standard itself “sufficiently ambiguous” that they City cannot enforce it under its clear and objective criteria. To substantiate this creative (and familiar) argument, he asserts that the “disagreement” concerns the “meaning of ‘areas’ for purposes of applying this standard.” Despite the applicant’s attempt to introduce an “ambiguity” into this evaluation, the question over whether or to what extent the Goal 5 resource on the property was acknowledged in 1982 does not render EC 9.8325(3) “ambiguous.” As LUBA explained in 2022 an appeal of the City’s Accessory Dwelling ordinance Conte v. City of Eugene __ Or LUBA __ (LUBA No. 2021 -092 (May 9, 2022), “complicated does not equate to ambiguous.” Rather, LUBA explained: “To be ‘clear’ for purposes of ORS 197.307(4), a standard must be “clear enough for an applicant to know what he must show during the application process,” it must be “easily understood and without obscurity or ambiguity,” and it must not be capable of multiple constructions that support diametrically opposed conclusions. [Citations omitted.]”