<br /> <br /> 14 <br /> <br />[D]espite the applicant’s attempt to introduce an “ambiguity” into this evaluation, the <br />question [of] whether or to what extent the Goal 5 resource on the property was <br />acknowledged in 1982 does not render EC 9.8325(3) “ambiguous.” As LUBA explained in <br />2022 [in] an appeal of the City’s Accessory Dwelling ordinance [in] Conte v. City of Eugene __ <br />Or LUBA ___ (LUBA No. 2021-092 (May 9, 2022), “complicated does not equate to <br />ambiguous.” Rather, LUBA explained: <br /> <br />To be “clear” for purposes of ORS [197A.400], a standard must be “clear enough for an <br />applicant to know what he must show during the application process,” it must be “easily <br />understood and without obscurity or ambiguity,” and it must not be capable of multiple <br />constructions that support diametrically opposed conclusions. (See Hearings Official’s <br />Decision, page 11). <br /> <br />EC 9.8325(3) itself is clear and objective. An applicant must either demonstrate that the subject <br />property is included in the City’s acknowledged Goal 5 inventory, or the applicant must demonstrate <br />compliance with the Tree Preservation and Removal Standards at EC 9.6880 to EC 9.6885. The fact <br />that a demonstration might be complicated does not make the standard unclear or subjective. See <br />Piculell v. City of Eugene, 80 Or LUBA 492, 495-96 (2019) (LUBA determined that the fact that the <br />Hearings Official and Planning Commission relied on different rationales to determine that a <br />property was located within the boundaries of the South Hills Study did not make EC 9.8325(2), <br />which is applicable to properties within the boundaries of the South Hills Study, either unclear or <br />subjective). This sub-assignment of error should be denied. <br /> <br />Willow Springs Decision <br />The text of the Willow Springs decision does not support the applicant’s argument that location of a <br />Goal 5 protected resource (such as a stream) on a portion of a development site automatically <br />means that the entire site is included in the City’s Goal 5 inventory. The Hearings Official’s Willow <br />Springs decision states a few times that the Willow Springs property is included in the City’s Goal 5 <br />inventory, but never explicitly states that Goal 5 protection of a specific identifiable resource <br />extends Goal 5 protections to the entire site. Staff believes the Willow Springs decision is <br />inconclusive on this issue and therefore cannot be relied on to support the applicant’s interpretation <br />that it translates to meaning that the entire subject site is a Goal 5 area in the subject case. <br /> <br />Burden of Proof <br />LUBA has been extremely clear that the applicant bears the burden of proof to establish compliance <br />with the applicable approval criteria. Woodburn Petroleum, LLC v. City of Woodburn, ___ Or LUBA <br />___ (LUBA No. 2022-077, January 9, 2023, slip op at 6), quoting Wilson v. Washington County, 63 Or <br />LUBA 314, 322 (2011) (“[A]n applicant bears the burden of proof to demonstrate that an application <br />complies with applicable approval standards….”). Applicant’s statements to the contrary are <br />inconsistent with applicable law. This sub-assignment of error should also be denied. <br /> <br />For all the reasons discussed above, staff recommends the Planning Commission reverse this portion <br />of the Hearings Official’s decision and find that there is substantial evidence in the record to show <br />that Figure H-2 is part of, and clearly depicts, the scenic areas narratively described in the Scenic <br />Sites Working Paper, and that Figure H-2 is one of the documents that forms the City’s adopted and <br />Planning Commission Agenda Page 16 of 159