Appeal Materials 2024-09-17 - Laserfiche WebLink

Eugene Planning Commission September 17, 2024 Page 4 (2) Tree Preservation Standards: If Scenic Sites Working Paper Figure H-2 is an acknowledged map of Goal 5 resources, then the Tree Preservation standards do not apply because the entirety of the site is on Figure H-2. Furthermore, the presence of the mapped Goal 5 Water Resource on a portion of the subject property is sufficient to exclude the entire property from the tree preservation standards.1 There are several HO errors related to this issue: (2)(a) First, the HO erred in assigning to the applicant the burden of proving whether “Figure H2” in the Scenic Sites Working Paper is a part of the acknowledged Goal 5 inventory. Decision pages 8-16. The City has the burden to identify the standards for decisions, not the applicant. More specifically: • The standards the City applies must be stated in the code. ORS 227.173(1). • When an application is for housing, the City may apply only clear and objective standards if the applicant chooses that track. ORS 197A.400. • That includes Goal 5 standards. Warren v. Washington County, 78 Or LUBA 375 (2018), aff’d 296 Or App 595 (2019). The City was required to have clear and objective Goal 5 regulations. OAR 16-016-010(3). • When, as here, the standards must be clear and objective, “the standards must be clear and objective on the face of the ordinance.” ORS 227.173(2). The HO spent eight single-spaced pages examining the evidence and arguments about what constitutes the acknowledged Goal 5 inventory of Scenic Areas. She gave up, shifted the burden to the applicant to prove what the plan inventory is, and found the burden had not been carried. This was an error. What constitutes a “standard” for a decision is a question of law. Holland v. City of Cannon Beach, 154 Or App 450, 458, 962 P2d 701 (1998). The plan designation for any property is a question of law. Knutson Family LLC v. City of Eugene, 200 Or App 292, 300, 114 P3d 1150 (2005). Therefore, what map or figure shows the acknowledged inventory is a question of law. The applicant has no burden to identify the law. The applicant may not be faulted or penalized if the City can’t provide a clear paper trail to the relevant city map. Furthermore, the HO had an obligation to include in her Decision a finding stating what the standards are for the decision. That obligation is based in statutes. ORS 227.173(3). Findings identifying the standard are also needed to make possible review for the decision. Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or 3, 21, 569 P2d 1063 (1977): 1 Our rebuttal submittal of August 14 included Exhibit G, the Willow Springs Subdivision approval, in which this HO found that a portion of the site being mapped as a Goal 5 resource was sufficient to qualify the entire site as being an area included on an acknowledged Goal 5 inventory. See Second open record submittal, Exhibit G, page 19. This point was not addressed in the decision.