Eugene Planning Commission <br />September 17, 2024 <br />Page 5 <br /> <br />(2)(b) Second, if the HO cannot determine whether the subject property is on the Scenic <br />Areas inventory, then that piece of the Goal 5 program is not “clear” enough to be applied. The <br />term “clear” means easily understood and without obscurity or ambiguity. Roberts v. City of <br />Cannon Beach, 316 Or App 305, 312 (2021). A standard or condition that can be construed to <br />support two diametrically opposed conclusions is not clear and objective. Id., quoting Group B, <br />LLC v. City of Corvallis, 72 Or LUBA 74 (2015), aff’d without opinion 275 Or App 577, 366 <br />P3d 847 (2015), rev den 359 Or 667 (2016). Instead of resolving this issue by saying the <br />applicant did not carry the burden of proof to identify the acknowledged Goal 5 inventory, the <br />HO should have found that the inventory standard may not be applied at all because it is not clear <br />what the inventory is. She should have found that the code standard potentially triggering tree <br />preservation regulations may not be applied because its operative provision – what constitutes <br />the inventory – is obscure and not “clear” in the meaning of the statute. ORS 197A.400. <br /> <br />(2)(c) Third, the City should decide that the acknowledged Goal 5 Scenic Sites Inventory <br />is shown on Figure H-2, which shows the subject property is on the inventory, because: 1) That <br />is the position LUBA took in the Home Builders decision, when it reviewed the 2001 zoning <br />recodification for impact on Goal 5 regulations. “Significant scenic areas are not listed in any <br />resource list, but instead are mapped at Figure H-2,” 41 Or LUBA at 428. 2) That was the recital <br />of the City Council when it adopted the Water Resources component of the Goal 5 program in <br />2005 in Ordinance 20351 and also restated what constituted the balance of the already <br />acknowledged Goal 5 program. Staff First Open Record Mem at PDF 278.2 3) That is, and <br />consistently has been, the position of the city staff, as reflected in the Staff Report for this and <br />the previous approval for the same site.3 <br /> <br />In summary, The City has the burden to identify what areas are acknowledged as significant <br />Goal 5 Scenic Sites in the plan, not the applicant; the Metro Plan documents are not clear on that <br />point, as the HO’s eight-page discussion shows and, therefore, state law prohibits applying the <br /> <br />2 The Staff Report and Staff First Open Record Memo say Ord 20351, adopting the Water <br />Resources Goal 5 program in 2005, also adopted the 1978 Scenic Sites Working Paper. It did <br />not. The Scenic Sites Working Paper, along with its Map H-2, was adopted with the original <br />Metro Plan and acknowledged with the Metro Plan in August 1982; it was a touchstone for <br />LUBA’s review of the LUCU recodification updated in 2001. <br /> <br />3 See Staff Report for PDT 18-4 at page 5, Applicant Ex F to Second Open Record submittal: <br /> <br />“The DLCD Acknowledgment Report for the Metro Plan (Aug. 14, 1981) <br />explains that the Goal 5 Inventory includes the entire area of the South Hills <br />Study, as shown on Figure H-2 of the Scenic Sites Working Paper. See page 4, <br />para 1 of the DLCD Report. The DLCD Report explains that the South Hills <br />Study and the PUD code regulations are part of the implementing regulations for <br />the Goal 5 inventory. See DLCD Report at 15-16. This means that this site, which <br />is smack in the middle of an area on the Goal 5 inventory, is on the Goal 5 <br />Inventory.”