Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
Appeal Materials
AM • Planning k- F •P DEC 1 6 2015 PEAL OF INITIAL HEARINGS OFFICIAL OR HISTORIC REVIEW BOARD DECISION The appeal of an initial Hearings Official or Historic Review Board decision provides for a review of a quasi-judicial decision by a higher review authority specified in the Land Use Code. In general, the appeal procedures allow for a review of the original application, the Hearings Official or Historic Review Board decision, the appeal application, and any facts or testimony relating to issues and materials that were submitted before or during the initial quasi-judicial public hearing process. The Hearings Official or Historic Review Board decision may be affirmed, reversed, modified, or remanded by the Planning Commission. Please check one of the following: ❑ Adjustment Review, Major Planned Unit Development, Tentative Pian ❑ Conditional Use Permit ❑ Willamette Greenway Permit ❑ Historic Landmark Designation ❑ Zone Change* *This appeal form is not applicable for zone changes processed concurrently with a Metro Plan amendment, the adoption or amendment of a refinement plan, a Land Use Code amendment, or the application of the /ND Nodal Development overlay zone. City File Name: City File Number: 1~_' Date of Hearings Official or Historic Review Board Decision: 1 MAO lf-() Date Appeal Filed: 2,1 ( (This date must be within 12 days of the date of the mailing of the Planning Director's decision.) Attach a written appeal statement. The appeal statement shall include a written statement of issues on appeal, be based on the record, and be limited to the issues raised in the record that are set out in the filed statement of issues. The appeal statement shall explain specifically how the Hearings Official or Historic Review Board failed to properly evaluate the application or make a decision consistent iwtht he original application. Please contact Planning staff at the Permit and Information center, 99 West 10`h avenue, 541-682-5377, for further information on the appeal process. A filing fee must accompany all Hearing's Official and Historic Review Board appeals. The fee varies depending upon the type of application and is adjusted periodically by the City Manager. Check with Planning staff at the Permit and Information Center to determine the required fee or check on the web at: www.eugeneplanning.org www. eugene-or-.gov1plctnning Planning & Development Planning Division 99 W. 10TH Avenue, Eugene, OR 97401 P 541.682.5377 * F 541.685.5572 Updated: October, 2012 Page 1 of 2 Acknowledgment I (we), the undersigned, hereby acknowledge that I (we) have read the above appeal form, understand the requirements for filing an appeal of a planning director decision, and state that the information supplied is as complete and detailed as is currently possible, to the best of my (our) knowledge. APPELLANT:--c TV IA,, wAUT&-7 Wn , Vt n,p04 I~' UC- Name (print): Phone: Company/Organization: Address: ss(; M City/State/Zip: EVI WV G Signature: V V l k V 6W 141M obf-Ky*al- APPELLANT'S REPRESENTATIVE: Name (print): 13 ( u- ~-~0 Company/Organization: V`Av\) [n ` W ~jlut- Me, Address: yv• 4°T+ r- y e -14 l City/State/Zip: E-mail (if applicable): ©Iev 00V (A Phone: `W ( -S-W Fax: Signature IF this appeal is being filed by the affected recognized neighborhood association, complete the following: Name of Association: www.eugene-or.gov/planning Planning & Development Planning Division 99 W. 10TH Avenue, Eugene, OR 97401 P 541.682.5377 * F 541.685.5572 Updated: October, 2012 Page 2 of 2 Elf LAW OFFICE OF BILL KLOOS PC j DEC 1 6 2015 ~ e OREGON LAND USE LAW 375 W. 4T"AVENUE, SUITE 204 EUGENE, OR 97401 TEL: 541.343.8596 WEB: WWW.LANDUSEOR-EGON.COM December 16, 2015 Eugene Planning Commission c/o Eugene Planning and Development Atrium Building 99 West 10th Ave. Eugene, OR 97401 Re: Chamotee Trails PUD (PDT 15-1/ARA 15-13); Applicant's Appeal of Hearings Official Denial to Planning Commission Dear Commissioners: BILL KLOOS REGON.COM The proposal is for a 10-lot tentative planned unit development on 5.19 acres in the South Hills, to be processed under the Needed Housing Track in the code and the state law that applies directly to such applications. This appeal incorporates our attached Final Argument to the Hearings Official dated November 23. We have also attached a full copy of LUBA's decision in Group B LLC v. City of Corvallis, - Or LUBA _ (August 25, 2015), because it is on point and discussed extensively in the record. It is a good read. References herein to the major documents will be: Applicant Hearing Letter (Nov. 3) Branch Engineering Post-Hearing Letter (Nov. 12) Applicant Final Argument (Nov. 23) Staff Report (Oct. 23) Staff Hearing Memo (Nov 3) Staff Post-Hearing Memo (Nov. 12) City Attorney Memo (Nov. 12) As a final introductory note, the decision of the Hearings Official borrows much text from the Staff Report, and it refers to a "Staff Decision." There is no staff decision, just a Staff Report. The Hearings Official made the initial decision. 1. Introduction Eugene Planning Commission December 16, 2015 Page 2 The Hearings Official denied the application solely for failure to comply with the code standard commonly called the 19 Lot Rule. "The Hearings Official finds that the application should be denied because it cannot comply with EC 9.8325(6)(c) - the 19 lot rule. The proposal is for "needed housing" as used in ORS 197.303-306. However, EC 9.8325(6)(c) is a clear and objective standard with which this particular application cannot comply." The "19 Lot Rule" is: Standard EC 9.56875(c): The street layout of the proposed PUD shall disperse motor vehicle traffic onto more than one public local street when tile PUD exceeds 19 lots or when the sum of proposed PUD lots and the existing lots utilizing a local street as the single means of ingress and egress exceeds 19. The 19 Lot Rule applies to Needed Housing PUDs but not to Needed Housing Partitions or any kind of approvals under the General Track with discretionary standards. The error the City is making here is the same as in Group B. There the City applied what it said was a clear and objective standard to deny a Needed Housing application. LUBA found the standard to be ambiguous, and then applied the Needed Housing Statute to tell the City it could not apply the standard. It reversed the denial. The central themes in this appeal related to the Needed Housing Statute are: Here we have the same situation as in Group B. The Hearings Official and the City Attorney found that the standard is clear and objective. It is not. "Disperse" is ambiguous. Because the terns is ambiguous, and can be read to either approve or deny the use, the standard may not be applied at all, as in Group B. The City finding that the developer of this site can take its chances under the discretionary standards of the General Track is contrary to state law. That statute only allows the City to apply discretionary standards if the "applicant retains the option of proceeding under the approval process" that applies clear and objective standards. ORS 197.307(6). So, the city position is contrary to the statute. When the City included this land in the Buildable Land Inventory (BLI) it vouched to the state that the land would be available for residential development under clear and objective standards. Now the City is saying that is it is not available. That finding is contrary to the acknowledged plan and contrary to the Needed Housing Statute, which guarantees the right to develop under clear and objective standards, not the right to be denied under clear and objective standards. Whether the 19 Lot Rule is clear or ambiguous, the City may not apply it to deny development. The Commission should reverse the denial and approve the Tentative PUD. Eugene Planning Commission December 16, 2015 Page 3 11. Summary of Issues Three issues are raised in this appeal, and one precautionary issue: 1. The 19 Lot Rule meaning in the Code: The Hearings Official selected the wrong definition of "disperse." Neither the code language nor the context for the code language requires that traffic be dispersed to any particular point or distance from the project. 2. The 19 Lot Rule under State Law: The Hearings Official erred in finding, at pages 14-15, that the 19 Lot Rule is a clear and objective standard because "disperse" has a plain meaning. The standard is ambiguous because "disperse" is not defined. There are at least two possible interpretations - one that the application would comply with, and one that it would not. The Needed Housing Statute prohibits applying standards that are not clear and objective. Therefore, the 19 Lot Rule may not be applied. 3. The 30' Landscape Buffer under State Law: The Hearings Official erred in applying this standard at all. He interpreted the standard to include an exception as to where the buffer applies when the plain language does not allow any interpretation. His rationale is unexplained. He should have declined to apply the standard in its entirety because, if applied according to its plain terms, it would not allow any development, contrary to the Needed Housing Statute. We raise this fourth assignment as a precaution: 4. Although the Hearings Official did not address this issue, it would be error for the City to direct the applicant to the Needed Housing Partition process as an alternative approach to developing this project. That approach, although it would not invoke the 19 Lot Rule, would unreasonably delay and increase the cost of needed housing, contrary to ORS 197.307(4). III. Code provisions relevant to filing this appeal: EC 9.7655 explains the contents of an appeal: The appeal shall include a statement of issues on appeal, be based on the record and be limited to the issues raised in the record that are set out in the fled statement of issues. The appeal statement shall explain specifically how and hearings official or historic review board failed to properly evaluate the application or make a decision consistent with applicable criteria. The basis of the appeal is limited to the issues raised during the review of the original application. Eugene Planning Commission December 16, 2015 Page 4 EC 9.7680 explains what the Commission may do with an appeal: The planning commission shall affirin, reverse, or modify, any decision, determination, or requirement of the hearings offrcial or historic review board. In addition, upon concurrence of the applicant, including waiver of the right to a decision within 120 days, and with the payment of an additional fee, the decision can be remanded to the original decision-maker. Before reversing the decision, or before changing any of the conditions of the hearings official or historic review board, the planning commission shall make findings of fact as to why the hearings offrcial or the historic review board failed to properly evaluate the application or make a decision consistent with applicable criteria. The action must be agreed to by a mafority of the members present at the hearing. A tie vote results in affirming the decision of the hearings official or the historic review board The planning commission's action is final. This appeal is filed by the applicant, on a city appeal form, in a timely fashion, with the listing above of issues on appeal, all of which were raised in the record before the Hearings Official. IV. Discussion of the issues: Issue 1: The 19 Lot Rule meaning in the Code: The Commission should find that the Hearings Official selected the wrong definition of "disperse." Neither the code language nor the context for the code language requires that traffic be dispersed to any particular point or distance from the project. The Hearings Official concluded that the 19 Lot Rule is clear and objective and has a plain meaning. Decision pages 14-15. That conclusion is patently wrong. The standard is ambiguous and must be interpreted. Code language is ambiguous if it can be given more than one meaning. Whether it is ambiguous is a question of law, which LUBA will ask afresh. In other words, the Hearings Official saying it has a plain meaning does not make it so. To determine the meaning of ambiguous language the City must consider the text of the provision, the larger code context for the provision, and relevant legislative history. Here there are two plausible interpretations: (1) Traffic must be able to leave the site in two directions on a "public local street" as defined in the code, which includes an unimproved street; this is the "get out" meaning; (2) Traffic must be able to leave the site in each direction and go around to the point of the beginning; this is the "go around" meaning; as explained by the staff and the Hearings Official, it is the same as having "secondary access." As the Hearings Official said: "[T]raffic at a minimum must be able to go somewhere in two different directions that do not terminate in a dead end." Decision at 15 para 4. The first meaning fits the text, context and legislative history. The second meaning, chosen by the Hearings Official, adds language to the Eugene Planning Commission December 16, 2015 Page 5 code that is not there and is not supported by the context or legislative history. The "get out" interpretation is better than the "go around" interpretation. Looking at the text, context, and legislative history of this standard, here is what can be said for sure: Text: As the Staff Report correctly explains at pages 8-9, a street that meets this standard may be unimproved at some point because "street" is defined to include "unimproved" right-of-way. EC 9.0050 says: Street. An improved or unimproved public or private way, other than an alley, that is created to provide ingress or egress for vehicular traffic to one or more lots or parcels., excluding a private way that is created to provide ingress or egress to land in conjunction with the use of land for.forestry., mining, or agricultural purposes. * * * * [Emphasis added] Context: "[D]isperse motor traffic onto more than one public local" street cannot have the same meaning as having "secondary access," as the Staff and the Hearings Official believe, because the phrase "secondary access" is used elsewhere in the code. See EC 9.6870 Table; EC 9.6815(2)(d). Different terms in the code are presumed to have different meanings. If the City Council had intended that "disperse" traffic in the 19 Lot Rule meant the same thing as having secondary access, then it would have used the phrase "secondary access." Thus, the "go around" or "secondary access" meaning must be wrong. Also, this standard is not about fire safety, because it does not appear in the other approaches to developing land. For example, as staff explained, the applicant could get to this same development pattern, more slowly and expensively, by doing five partitions in three successive series under the standards for Needed Housing Partitions, or under any of the General Standards. Those alternative approaches would not invoke the 19 Lot Rule. So, it's not about fire safety. This project meets the lire code by sprinkling the houses. Legislative History: The legislative history also shows that including the 19 Lot Rule for Needed Housing PUD was not about dealing with fire safety. See discussion in Final Argument beginning page 3 second last para, quoting legislative history from 1999-2001. Summary: Eugene Planning Commission December 16, 2015 Page 6 The Code says that traffic must be dispersed onto a street, including a street that is unimproved, because a "street" includes unimproved streets. A car turning right onto the street and proceeding about 1000 feet to where the street is unimproved is being dispersed in the meaning of the code. The Hearings Official erroneously gave the 19 Lot Rule a wholly different meaning. He would require two independent ways into and out of site from anywhere. That would be "secondary access," which is a different phrase used elsewhere in the code. The Rule could have been written to say secondary access, but it was not. The Hearings Official summarized the position of the Fire Marshall as opposing the project, for lack of secondary access, even though he stated that "it is not directly relevant with respect to the applicable standard here." Decision at 13 last para. He is correct that it is not relevant to the meaning of the standard. But he is wrong about the final position of the Fire Marshall. The record shows, with a Nov. 4 email from the Fire Marshall, that the development complies with the fire code if the dwellings have sprinklers, regardless of the number of units served by a single access. The applicant committed to sprinklers. Maybe the Hearings Officer missed this. If the Commission agrees with the applicant's reading of the 19 Lot Rule then it need not address Issue 2 below. Issue 2: The 19 Lot Rule under State Law: The Hearings Official erred in finding, at pages 14-15, that the 19 Lot Rule is a clear and objective standard because "disperse" has a plain meaning. The standard is ambiguous because "disperse" is not defined. There are at least two possible interpretations - one that the application would comply with, and one that it would not. The Needed Housing Statute prohibits applying standards that are not clear and objective. Therefore, the 19 Lot Rule may not be applied. The Applicant filed under the Needed Housing Track in the code because state law applies directly to require the City to apply only standards that are clear and objective on their face, and that can only be applied in a clear and objective way. The Hearings Official escaped this law by finding that the 19 Lot Rule is clear and objective when it plainly is not. As a quick introduction, three statutes apply directly here: When the application is for "needed housing" ORS 197.307 applies. It says in part: (4) Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of needed housing on buildable land described in subsection (3) of this section. The standards, conditions and procedures may not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay. Eugene Planning Commission December 16, 2015 Page 7 (6) In addition to an approval process for needed housing based on clear and objective standards, conditions and procedures as provided in subsection (4) of this section, a local government may adopt and apply an alternative approval process for applications and permits for residential development based on approval criteria regulating, in whole or in part, appearance or aesthetics that are not clear and objective if: (a) The applicant retains the option of proceeding under the approval process that meets the requirements of subsection (4) of this section; (b) The approval criteria for the alternative approval process comply with applicable statewide land use planning goals and rules; and (c) The approval criteria for the alternative approval process authorize a density at or above the density level authorized in the zone under the approval process provided in subsection (4) of this section. ORS 227.173(2) raises the bar for the City for when a standard can meet the statute. It says: (2) When an ordinance establishing approval standards is required under ORS 197.307 to provide only clear and objective standards, the standards must be clear and objective on the face of the ordinance. Finally, there is a special burden of proof that the City will have to meet to defend its decision on appeal. ORS 197.831(1) says: 197.831 Appellate review of clear and objective approval standards, conditions and procedures for needed housing. In a proceeding before the Land Use Board of Appeals or an appellate court that involves an ordinance required to contain clear and objective approval standards, conditions and procedures for needed housing, the local government imposing the provisions of the ordinance shall demonstrate that the approval standards, conditions and procedures are capable of being imposed only in a clear and objective manner. These statutes operate simply. If the City has not shown that a standard is clear and objective on its face, and that it can only be applied in a clear and objective manner, then the City may not apply it to make the decision. See Parkview Terrace Dev 't Inc. v. City of Grants Pass, _ Or LUBA (No. 2014-024, July 23, 2014) (reversing city denial of apartments because seven standards were discretionary, thus "outside the range of discretion allowed the local government under its comprehensive plan and implementing ordinances[.]"); Rudell v. City of Bandon, 62 Or LUBA 279 (LUBA No. 2010-037, November 29, 2010)(city could not apply several standards for a conditional use permit for a single dwelling because they were not clear and objective). Eugene Planning Commission December 16, 2015 Page 8 For purposes of applying this statute, the question is whether the 19 Lot Rule is susceptible to alternative interpretations, including one that would approve the use and one that would deny the use. The issue under the statute is not about the right interpretation. As discussed in the first assignment, we have that situation here. One interpretation is the "get out" interpretation, and the other is the "go around" interpretation. We think the "get out" meaning is right, but both are plausible. Both being plausible, however, is fatal to applying the standard at all, because it is not clear and objective. The Group B decision from Corvallis is the most recent example of how this works. It is discussed more fully in the Final Argument, at pages 8-9, 11, 13. The essentials, however, are that a relevant standard there was ambiguous and could be interpreted to either allow or disallow the project. LUBA held, therefore, that it could not be applied at all. LUBA said: However, because the proposal is needed housing located on inventoried buildable lands, ORS 197.307(4) prohibits the city from applying any unclear or subjective standards or conditions to approve or deny the proposed needed housing. [Group B at 15] A condition that requires such interpretation, to determine whether proposed needed housing is allowed at all, is not a "clear and objective" standard or condition within the meaning of ORS 197.307(4)." [Group B at 11 line 10] The city council found that Condition 12 is an approval standard for the proposed development, and that the applicant must either satisfy Condition 12 or demonstrate that a modification of Condition 12 is warranted under the compatibility standards at LDC 2.5.40.04. [Group B at 9 line 9] Petitioner argues that Condition 12 is not a "clear and objective" standard or condition within the meaning of ORS 197.307(4). [Group B at 9 line 19] We agree with petitioner that Condition 12 is ambiguous and requires interpretation as applied to the proposed development. Condition 12 unambiguously prohibits the location of The Regent building within 135 feet of the south property line of what is now Tract B. However, Condition 12 is ambiguous regarding whether other development is similarly precluded within the area that is now Tract B. [Group B at 10-11] Eugene Planning Commission December 16, 2015 Page 9 Because Condition 12 is ambiguous regarding whether any development (including needed housing) of Tract B is allowed at all, and is not clear and objective, the city cannot apply Condition 12 to prohibit the proposed needed housing, or as a vehicle to subject the proposal to subjective approval standards at LDC 10 2.5.40.04." [Group B at 15 line 1.1 The very same rationale applies here. If the Commission agrees with the staff and the applicant, that the standard is ambiguous, then it will need to choose between two competing interpretations - one that allows the use and one that prohibits the use. In that event the Commission must find that the 19 Lot Rule may not be applied under the statute, as explained in Group B. The Hearings Official attempts to distinguish the Group B LUBA opinion from this application. Decision at 16 para 2. There is no distinction; the holding of Group B is squarely on point. The key holdings from Group B are quoted above. Note that the Hearings Official distinguishes the case because it turned on an ambiguous 1981 condition that applied to the site. However, the City treated the 1981 condition as a "standard;" LUBA explained that the statute applies to both "standards and conditions;" and LUBA explained it is inunaterial whether the standards and conditions are brought forward from previous decisions or are in the current code. The Hearings Official, at page 15 second last para, also incorporates as findings the arguments of the City Attorney in Part II of her November 12 memo. We address those findings here. In Part II.A. the City Attorney says that this application may be denied because it fails to comply with a clear and objective standard. As we have explained above, the standard is not clear and objective. The number 19, of course, is clear, but what it means to "disperse" is ambiguous. Does disperse mean a secondary access is required? Because disperse can have alternate meanings to approve or deny, it is not clear and objective and may not be applied. In Part II.B. the City Attorney says that state law does not require that land in the BLI must be developable in all instances under clear and objective standards; this developer can always apply and take its chances under the general standards. The City Attorney has it backwards; completely backwards. The statute says that the City may only apply standards in a discretionary track if the applicant has the right to develop the site under clear and objective standards. See ORS 197.307(6)(a) quoted above. Here, the only way to allow development under clear and objective standards is to not apply the 19 Lot Rule, whether it is viewed as clear and objective or not. The rationale for this is simple. When the City submitted its Buildable Land Inventory for acknowledgment, it vouched to the state that the BLI lands included enough acres for 20 years of residential development. The City can't tell the state that it is developable and later say that it is not developable. That is what the Hearings Official and the City Attorney are asking the Commission to say here. Eugene Planning Commission December 16, 2015 Page 10 Issue 3: The 30' Landscape Buffer under State Law: The Hearings Official erred in applying this standard at all. He interpreted the standard to include an exception as to where the buffer applies when the plain language does not allow any interpretation. His rationale is unexplained. He should have declined to apply the standard in its entirety because, if applied according to its plain terms, it would not allow any development, contrary to the Needed Housing Statute. The 30'Buffer Rule is: EC 9.8325(3): The PUD provides a buffer area between the proposed development and surrounding properties by providing at least a 30 foot wide landscape area along the perimeter of the PUD according to EC 9.6210(7). The Hearings Official was comfortable reading this standard to except out roads from "surrounding properties." He explicitly declined to address our argument that this standard is clear and objective and does not allow interpretation to except out roads. See Decision at page Please see applicant's argument on this issue that the Hearings Official ignored. Final Argument at pages 18-20. That also explains why the 30' buffer is so troublesome for development. To summarize our argument about this standard: 1. The plain language of this standard requires a landscape buffer around the entire perimeter. That would prohibit development. 2. A standard that is a prohibition on development, in the guise of a standard like this one, is contrary to the statute, which requires the City to allow development under clear and objective standards, not prohibit it. LUBA struck down a storm water standard in this code for the same reason in 2002 in the Home Builders decision. See our Final Argument at pages 12-13. 3. The staff rejected applying the 30' Buffer Rule according to its plain terms because they say it would be an "absurd" reading of the Rule. LUBA and the courts will not let the City use an "absurd results" theory to change the meaning of the 30' Buffer Rule. That is a highly disfavored approach; furthermore, the "absurd results" theory is only to be used in the last stage of statutory construction when trying to identify which of multiple interpretations is more plausible after review of the text and context of a provision. See, e.g., Southwood Homeowners v. City Council ofPhilomath, 106 Or App 21, 24, 806 P2d 162 (1991). The correct approach is to do what LUBA did with the storm water standard in Home Builders - recognize that the plain language is a prohibition of development in the guise of a clear and objective standard, and, therefore, decline to apply it, based on the Needed Housing Statute. Eugene Planning Commission December 16, 2015 Page 11 Precautionary Issue 4. Although the Hearings Official did not address this issue, it would be error for the City to direct the applicant to the Needed Housing Partition process as an alternative approach to developing this project. That approach, although it would not invoke the 19 Lot Rule, would unreasonably delay and increase the cost of needed housing, contrary to ORS 197.307(4). It was the staffs theory, raised in its Staff Hearing Memo, and elaborated upon in its Staff Post- Hearing Memo, that it is OK to deny under the 19 Lot Rule because this applicant could get to the same development approval through five discrete partition applications and approvals under the Needed Housing Partition process. The Hearings Official declined to address this issue. "The fact that the applicant can potentially develop through partitions or the discretionary PUD track are not relevant to the findings set out below." Decision at 5. Neither should the Commission address this issue. This theory is not an escape hatch for the Commission to apply the 19 Lot Rule when that rule is contrary to state law. The applicant explained that forcing the applicant into five discrete applications for minor partitions would greatly increase the cost of delivering housing and also greatly delay its delivery. The added costs and delay would not be reasonable. This is prohibited by the Needed Housing Statute. See the discussion in our Final Argument at pages 14-18 discussing this issue in detail. Sincerely, Va 5140" Bill Kloos Incl: Applicant's Final Argument to Hearings Official (Nov. 23, 2015) Group B LLC v. City of Corvallis - Or LUBA - (Aug. 25, 2015) LAW OFFICE OF BILL KLOOS PC OREGON LAND USE LAW 375 W. 4T"AVENUE, SUITE 204 EUGENE, OR 97401 TEL: 541.343.8596 WEB: WWW.LANDUSEOREGON.COM BILL KLOOS BILLKLOOS(t LANDUSEOREGON.COM November 23, 2015 Eugene Hearings Official c/o Eugene Planning Director 99 West 10th Ave. Eugene, OR 97401 Re: Chamotee Trails PUD (PDT 15-1/ARA 15-13); Applicant's Final Argument Dear Mr. Helm: This is the applicant's final argument. Reference to "Exhibits" here is to exhibits previously filed by this office. Initially, we summarize the key facts related to the legal issues in this matter. Those facts relate primarily to the updated slope map for the property. Then we address several legal questions: The 19 Lot Rule: What is the correct interpretation of this code standard? We believe the plain language meaning allows development of this site because traffic is dispersed in two directions. Is this project "Needed Housing" in the meaning of the statute, such that it gets the protections of the statute? The applicant, City Attorney, and Planning Cormnission agree that it is. If so, may the City apply the 19 Lot Rule to deny the project? No, for two reasons. First, there is too much interpretive discretion in the 19 Lot Rule for it to be applied as a standard. As LUBA explained in its recent Group B decision, if the standard can be interpreted to either allow or not allow the use, then it may not be applied under the Needed Housing Statute. It comes off the table. Second, applying the 19 Lot Rule would force the applicant into longer, more expensive series of partitions, to which the 19 Lot Rule does not apply. Forcing the applicant to take a longer, more expensive route to get to the same place would violate the prohibition in the Needed Housing Statute against clear and objective standards that result in unreasonable cost and delay of needed housing. There is no reason apparent in the code, or suggested by staff,, for why it would be reasonable to apply the 19 Lot Rule to the quicker, less costly PUD process, but Eugene Hearing Official November 23, 2015 Page 2 not to the slower, more expensive serial partition process. The Hearing Official should decline to apply the 19 Lot Rule for the same reason LUBA struck down the storm standard in the code in the Home Builders review of this code. If so, may the City apply the 30 foot landscape bz ffer setback to this project? No. The plain language of this standard snakes it a prohibition of development in the guise of a clear and objective standard. The Hearing Official should refuse to apply this standard for the same reason LUBA struck down the stormwater standard in the Horne Builders case. If the standard has to be interpreted so as not be absurd, as the staff suggests, then it is too discretionary to be applied, as explained in Home Builders. The applicant concurs with the explanation in the November 12 Staff memorandum for the reasons why Vivian Drive should not be improved or paved. 1. Summary of Key facts related to legal issues: We refer the Hearing Official to the November 12 post-hearing letter and materials from Branch Engineering. These materials included a revised contour map to correct the error flagged by Mr. Williamson. A revised site plan is also included to demonstrate how the project can be accommodated while respecting the 20% slope limitation on the revised contour map. II. Legal issues: A. The 19 Lot Rule: This project complies with the plain language of the 19 Lot Rule, which only requires dispersal, not dispersal to some unstated destination in the City. The standard is: Standard EC 9.56875(c): The street layout of the proposed PUD shall disperse motor vehicle traffic onto more than one public local street when the PUD exceeds 19 lots or when the sum of proposed PUD lots and the existing lots utilizing a local street as the single means of ingress and egress exceeds 19. Although the bulk of the argument has been about whether this standard may be applied under the Needed Housing Statute, the preliminary question is whether the application meets this standard, if it is applied according to its terms. If the answer is "yes," then we do not need to ask how the Needed Housing Statute applies to this issue. The applicant believes this proposal is consistent with standard. The starting point for the meaning of the standard is its plain text. If there is a need to interpret one then goes to the text, context, and legislative history, if available. Eugene Hearing Official November 23, 2015 Page 3 The operative term "street" is defined in the code. EC 9.0050: Street. An improved or unimproved public or private way, other than an alley, that is created to provide ingress or egress for vehicular traffic to one or more lots or parcels, excluding a private way that is created to provide ingress or egress to land in conjunction with the use of land for forestry, mining, or agricultural purposes. A "street" includes the land between right-of-way lines within the ingress/egress easement areas serving multiple residential lots but excluding "flagpole" portions of flag lots. [Emphasis added] Applying the code definition, West Amazon is a "street" in both directions from the subject property. The right of way continues to the north, on city owned right of way, and connects to the balance of the city street system, even though the right of way to the north is not yet improved beyond the city barrier a few hundred yards to the north of this site. If the Staff or others contend that the city barrier to the north and the unimproved character of the right of way beyond the barrier negate its being a "street" in the meaning of the code, that position reflects reading into the code some language that is not there. This project also meets the code requirement that the street "disperse" traffic in more than one direction. Here traffic can go north or south from the entrance to the site. Traffic can continue at least 1000 feet to the city barrier on the roads. The code is silent about how far traffic needs to be able to go in each direction in order to be "dispersed." "Disperse" is not defined in the code. That calls for turning to the dictionary. The Supreme Court favors Webster's Third New Int'l Dictionary. Osborn v. PSRB, 325 Or 135, 146, 934 P2d 391 (1997). The Webster's definition for "disperse" is: "[T]o cause to break up and go in different ways: send or drive into different places." Being able to travel out of the project and north on West Amazon meets this definition. The definition does not say one has to be able to disperse and get to a specific distance from the site (say a mile) or to a specific location (say Springfield). The Hearing Official should find that this project is consistent with 19 Lot Rule as written. There is nothing in the legislative history that would conflict with applying the standard consistent with the dictionary definition. This provision was adopted in the 2001 makeover of the zoning code, which was litigated in the Home Builders case. As explained at the hearing, the record of that appeal is over 17,000 pages and spans several years. We have submitted relevant legislative history in two previously filed Exhibits. Exhibit D is pages from May 1999 deliberations of the Planning Commission. Exhibit B is pages from the November 1999 and February 2001 deliberations. Exhibit D includes draft PUD provisions dated April 30, 1999. Bates 7873. At this juncture, there was only a single track for PUD review; there were not discrete tracks being considered for Needed Housing and General tracks. The Staff recommendation at this time was to not carry over the 19-lot rule from the old code. Staff explained at Bates 7880: Eugene Hearing Official November 23, 2015 Page 4 The "19 lot rule" is recommended for elimination due to the adoption of the Eugene Local Street Plan which incorporate (sic) a comprehensive set of requirements to address street connectivity. In general, the street connectivity standards provide an effective tool for the City to acquire the necessary right-of- way, including the appropriate alignment, as each land division application is submitted, whereas the "19 lot rule" is intended to ensure that adequate street connections are already in place. However, this provision can severely impact the ability to develop infill parcels even though many sites can demonstrate compliance with the City's new connectivity requirements. If there is interest to maintain the "19 lot rule," staff recommend that it be revised to address existing deficiencies. As Exhibit B shows, by the time the Planning Commission got to a November 8, 1999 draft code, there were discrete PUD standards for Needed Housing and General tracks, and the 19 Lot Rule was under the Needed Housing standards in its current form. Ex. B, Bates 7435. It was not in the standards for the General track. Ex. B, Bates 7431-7433. The Staff Report concurs that West Amazon meets the definition in this standard because "street" in the code is defined to include both improved and unimproved right of way. However, they are asking to find noncompliance anyway. First, Staff references the Planning Commission decision in Deerbrook. Staff Report at 9. (All the Deerbrook decisions appear as Applicant Exhibit A.) The Commission was facing a different situation in that proceeding. There the project would have developed West Amazon through the area where it is now blocked; the Commission said that being able to exit to the north and south on West Amazon would meet the standard. The Commission did not address a situation where a street was unimproved or blocked at some point in one direction after leaving the PUD site. Second, the Staff references the fire code standard for two entrances for fire vehicles. They admit this is not relevant to the 19 Lot Rule. Staff Report at 9. But they say it supports a finding of noncompliance anyway. Not so. This project will comply with the fire code by use of sprinklers unless and until a second route for fire vehicle access is found. The Staff's recommendation to find non-compliance with the 19-Lot standard is unfounded in the language of the code. In summary, the Hearing Official should find that application complies with the 19 Lot Rule, based on the plain language. He should not read language into the standard that is not there. He should not make policy on the fly about how far from the site a vehicle needs to be able to "disperse" in order to meet the standard. This is the legally correct conclusion, and it would also avoid the analysis under the Needed Housing Statute that follows below, with respect to the 19 Lot Rule. B. This project is for "Needed Housing" in the meaning of the statute, such that it gets the protections of the statute. The 19 Lot Rule may not be applied if can be interpreted to Eugene Hearing Official November 23, 2015 Page 5 either allow or disallow the project. The 30-foot landscape buffer requirement may not be applied because it would prohibit development and also requires discretionary interpretation. As noted in our Hearing Memorandum, a handful of key cases are relevant here: Group B, LLC v. City of Corvallis, _ Or LUBA _ (LUBA No. 2015-019, Aug. 25, 2015)(reversing denial under Needed Housing Statute); Parkview Terrace Dev 't Inc. v. City of Grants Pass, _ Or LUBA _ (No. 2014-024, July 23, 2014)(same); Rudell v. City of Bandon, 62 LUBA 279 (2010)(finding discretionary standards inapplicable); Horne Builders Assoc. of Lane County v. City of Eugene, 41 Or LUBA 370, 424 (2002)(facial challenge to new provisions in Eugene code as contrary to the statute). Group B is the touchstone case. The key provisions of the Needed Housing Statute being invoked here are in ORS 197.307: 197.307 Effect of need for certain housing in urban growth areas; approval standards for certain residential development; placement standards for approval of manufactured dwellings. (4) Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of needed housing on buildable land described in subsection (3) of this section. The standards, conditions and procedures may not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay. (6) In addition to an approval process for needed housing based on clear and objective standards, conditions and procedures as provided in subsection (4) of this section, a local government may adopt and apply an alternative approval process for applications and permits for residential development based on approval criteria regulating, in whole or in part, appearance or aesthetics that are not clear and objective if: (a) The applicant retains the option of proceeding under the approval process that meets the requirements of subsection (4) of this section; (b) The approval criteria for the alternative approval process comply with applicable statewide land use planning goals and rules; and (c) The approval criteria for the alternative approval process authorize a density at or above the density level authorized in the zone under the approval process provided in subsection (4) of this section. 1. Background on the Needed Housing Statute. Eugene Hearing Official November 23, 2015 Page 6 Based on the discussion at the hearing, it is worth setting out the basics of the statutory scheme here. Then we will explain how the statute has been implemented in the Eugene Code. The requirement for clear and objective standards for decisions related to Needed Housing started with the LCDC's "St. Helens Policy" in 1979.1 The St. Helens Policy intended to ensure that there is enough land with the right zoning inside Urban Growth Boundaries (UGBs) to meet the city's need for the identified housing types. The policy required that standards, conditions and procedures for needed housing be clear and objective and not discourage needed housing through unreasonable cost or delay. See McIntyre-Cooper Co. v. Bd of Connn'rs of Rashington County, 55 Or App 78, 82, 637 P2d 201 (1981)(summarizing St. Helens Policy). The Legislature codified the St. Helen's Policy in 1981 with the adoption of the Needed Housing Statute. See SB 419, 1981 Or Laws, Chapter 884, Sections 5 and 6. After many amendments over the decades, the statute was reorganized, to be policy neutral, in 2011 by 2011 Or Laws Ch 354. "Needed housing" is now defined in ORS 197.303, which says in part: "197.303 "Needed housing" defined. (1) As used in ORS 197.307, "needed housing" means housing types determined to meet the need shown for housing within an urban growth boundary at particular price ranges and rent levels, including at least the following housing types: (a) Attached and detached single-family housing and multiple family housing for both owner and renter occupancy;" When the application is for needed housing, ORS 197.307 applies. ' The status of the St. Helens Housing Policy as the starting point for the Needed Housing Statute was explained by LUBA in Rogue Valley Association of Realtors v. City of Ashland, 35 Or LUBA 139, 155-158 (1998), aff'd 158 Or App 1, 970 P2d 685, rev denied 328 Or 594 (1999): "The legislative history confirms that the central concern of the legislature in adopting ORS 197.303 and 197.307 was that local governments should not be able to use their land use regulations to exclude certain housing types, particularly manufactured housing, which the legislature believed was needed to satisfy low and moderate-income housing demand. The legislative history also confirms that the current statute and administrative rule were derived (in many instances word-for-word) from the LCDC's St. Helens Housing Policy. A copy of the St. Helens Housing Policy is included in the legislative record of Oregon Laws 1981, chapter 884, sections 5 and 6 (SB 419). House Committee on Environment and Energy, SB 419, April 24, 1981, Ex E (LCDC Housing Policy) (hereafter cited as "St. Helens Housing Policy")." [35 Or LUBA at 156] Eugene Hearing Official November 23, 2015 Page 7 The operation of the statute is simple. If a particular standard is not clear and objective, the city may not apply it in making the decision. See Parkview Terrace Dev't Inc. v. City of Grants Pass, - Or LUBA _ (No. 2014-024, July 23, 2014) (reversing city denial of apartments because seven standards were discretionary, thus "outside the range of discretion allowed the local government under its comprehensive plan and implementing ordinances[.]"); Rudell v. City of Bandon, 62 Or LUBA 279 (LUBA No. 2010-037, November 29, 2010)(city could not apply several standards for a conditional use permit for a single dwelling because they were not clear and objective). Generally, standards are clear and objective in the meaning of ORS 197.307(6) if the local govenunent demonstrates that they do not impose "subjective, value-laden analyses that are designed to balance or mitigate impacts." Rogue Valley Assoc. of'Realtors v. City ofAshland 35 Or LUBA 139,158 (1998), aff'd 158 Or App 1, 970 P2d 685, rev den 328 Or 594 P2d (1999). To summarize: 1. The Needed Housing Statute applies directly to decisions regulating development of Needed Housing. 2. Under the default provision of subsection (4), the City may only apply clear and objective standards, conditions and processes. Standards requiring interpretation to approve or deny are not clear and objective. 3. Those standards and conditions "may not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay." 4. The City may have an alternative track regulating "appearance and aesthetics" that it applies to applicants. 5. The City may only apply the alternative track discretionary standards for appearance and aesthetics if the applicant retains the option to proceed under clear and objective standards. LUBA reviewed the newly adopted Eugene Code in 2001 (amended version being applied here) in an appeal brought by the Home Builders. That was a facial challenge to the newly adopted code. Horne Builders Assoc. of Lane County v. City of Eugene, 41 Or LUBA 370 (2002). LUBA's review found three types of errors alleged by the Home Builders. LUBA prefaced its review: ORS 197.307(3)(d) allows a local government to adopt an alternative approval process for residential applications and permits based on criteria that are not clear and objective, as long as the applicant has the option of proceeding instead under clear and objective criteria. See n 5; see also Callison v. LCDC, 145 Or App 277, 284 n 8, 929 P2d 1061 (1996) (clear and objective criteria are not rendered otherwise simply because local governments provide an optional, alternative set of approval standards that are not clear and objective). As the city explains, the Eugene Hearing Official November 23, 2015 Page 8 city designed the LUCU to offer two separate sets of approval criteria applicable to land use applications involving needed housing. The first track (needed housing track) is intended to contain only clear and objective criteria. The second is an optional, alternative track (alternative track) that includes criteria that are not intended to be clear and objective. Petitioners advance three general types of challenges. [41 Or LUBA at 383] The first kind of error related to standards that were not clear and objective. First, petitioners contend that some of the criteria under the needed housing track contain terms or standards that are not in fact clear and objective. These criteria are identified in Table 1.1 of Home Builders' petition for review, which challenges over 100 LUCU provisions, organized in 31 categories. [M..] The second kind of error is clear and objective standards that are so stringent as to prevent development, forcing an applicant into the discretionary track. Second, petitioners argue that some of the city's needed housing standards, even assuming they are clear and objective, are written in a manner that effectively prohibits and renders impossible the development of needed housing under clear and objective standards. Petitioners offer three examples or types of such standards, and argue that these types of standards violate the needed housing statutes because they essentially force the needed housing developer into seeking approval under the alternative track. Petitioners submit that forcing a needed housing applicant to pursue approval under the alternative track is inconsistent with the intent of the needed housing statutes. [Id. at 383-384] The third kind of error is clear and objective standards that discourage housing through unreasonable cost and delay. Third, petitioners argue that a number of LUCU provisions, even if clear and objective, nonetheless violate ORS 197.307(6) because they "discourage needed housing through unreasonable cost or delay." These LUCU provisions do so by either (1) reducing the area of development sites that can be developed; (2) requiring additional amenities in connection with development; or (3) adding additional requirements for filing complete applications for development. [Id at 384] In the balance of this argument, we explain how all three types of error are reflected in the city position. LUBA's most recent application of the Needed Housing Statute was in Gr•ol p B, LLC v. City of Corvallis, _ Or LUBA _ (LUBA No. 2015-019, Aug. 25, 2015). There LUBA reversed the city's denial of an apartment on land it found to be in the BLI. There LUBA held Eugene Hearing Official November 23, 2015 Page 9 that is was error for the City to deny the application under discretionary standards when the code did not provide an avenue for approval under clear and objective standards. 2. How the Eugene Code is structured to comply with the Needed Housing Statute Most cities have only a single set of standards for review of each approach to developing housing on land in the BLI. Corvallis is a typical example. Thus, in the Group B decision, LUBA reviewed the decision and removed from the table any grounds for denial that were based on a standard that was not clear and objective, including ambiguous standards that could be interpreted to approve or deny. That left no basis for denial; so LUBA reversed the denial. Eugene took a more sophisticated approach in giving its code a makeover in 2001. It adopted separate tracks of standards for review under discretionary standards and clear and objective standards. The former are referred to as the "General Track;" the latter as the "Needed Housing Track." And, of course, there were five kinds of reviews for housing in the Eugene Code - PUD, CUP, Site Review, Subdivisions, and Partitions. The LUBA appeal in Home Builders involved picking nits that violated the statute - removing from the "Needed Housing Track" those standards that flunked the statutory test. Here the development proposal is for needed PUD approval. The applicant applied under the "Needed Housing Track" of PUD standards. 3. This project is "needed housing" in the meaning of the Needed Housing Statute because the site is the city's Buildable Land Inventory, which is an acknowledged element of the comprehensive plan. We recommend to the Hearing Official Part I of the memo to you from City Attorney Anne Davies (Nov. 12, 2015). The city memo correctly explains that the proposal is for a "needed housing" type and the site is on the acknowledged BLI; therefore, this is a proposal for needed housing that gets the benefit of the Needed Housing Statute. (See also the more cryptic City Attny Opinion on the same subject (Aug. 15, 2008), submitted as Applicant Exhibit G.) That position is consistent with LUBA's most recent discussion of this issue in the Group B decision, which applied the current definition in the statute. LUBA said: However, because the proposal is needed housing located on inventoried buildable lands, ORS 197.307(4) prohibits the city from applying any unclear or subjective standards or conditions to approve or deny the proposed needed housing. [Group B at 15] It is consistent with every other reported case on the issue. It is also consistent with the Planning Commission's determination in the Deerbrook litigation, where the Commission found, at page 10: Eugene Hearing Official November 23, 2015 Page 10 The record shows that the subject property is included in the City's currently adopted Residential Land Study as buildable land. The HO correctly based compliance on the subject application being Needed Housing because it is in the buildable lands inventory (i.e. the Residential Lands Study). [See Applicant's Exhibit A] The City Attorney is also correct in rejecting Mr. Williamson's argument that ORS 197.304(2), commonly called the Eugene/Springfield Divorce Statute, operates to negate the validity of the current, acknowledged BLI. Since passage of the Divorce Statute in 2007, the two cities have been incrementally adopting separate BLIs and housing programs. The process has been akin to the separation of the arctic ice mass. Slow. Springfield now has its own acknowledged BLI. Eugene, as usual, is moving more deliberately than Springfield. For the reasons explained by the city attorney, the 1999 BLI for the Metro Area remains the BLI for Eugene. Mr. Williamson challenged the legal status of the proposal as "needed housing." He made the same challenge to the 47-lot Deerbrook PUD (PDT 12-1) approved by the City in 2013. Applicant submitted, as post-hearing Exhibit F, a copy of Mr. Williamson's testimony in the Deerbrook matter. It is the same theme, and it was addressed by the Hearing Official in the Deerbrook decision at page 9. See Applicant Exhibit A. He said: "Ross Williamson's written comment (June 11, 2012) and Southeast Neighbors' written testimony submitted at the hearing (August 1, 2012) both noted that the definition of "Needed Housing" in ORS 197.303(1) includes the phrase "at particular price ranges and rent levels," and because the Residential Land Study document cited above do not distinguish between price ranges and rent levels, there is no "needed housing" as defined by state law. "The hearings official notes that the City Attorney's Office explained in a memorandum to the Mayor and City Council that Springfield and Eugene met their obligations under the needed housing statutes by adopting the Residential Lands Study documents cited above, and that the studies are acknowledged. The hearings official notes that the studies do not distinguish between price ranges and rent levels. No person explained the reason for this to the hearings official, but the reason is not important because they are acknowledged and the hearings official must apply them in the form in which they were acknowledged. Here, this means that the applicant may properly apply for single-family dwellings as "needed housing." "The applicant also noted that the subject property is in the buildable lands inventory; it is inventoried as Site 8 in subarea 6." On appeal in Deerbrook, the Planning Commission confirmed the status of land that is on the acknowledged BLI as land that is for "needed housing" in the meaning of the statute. Commission decision at page 10. Applicant Exhibit A. Eugene Hearing Official November 23, 2015 Page 11 "The record shows that the subject property is included in the City's currently adopted Residential Land Study as buildable land. The HO correctly based compliance on the subject application being Needed Housing because it is in the buildable lands inventory (i.e. the Residential Lands Study)." 4. The 19 Lot Rule may not be applied consistent with the Needed Housing Statute if that standard can be interpreted to either allow or deny the project. As discussed in Part II.A. above, the Applicant views the 19 Lot Rule as having a plain meaning that allows this project. But if it is subject to interpretation, the discussion between staff and the applicant shows that the standard is subject to competing interpretations - one that would allow the project, and one that would deny the project. That range in the possible interpretations is just the kind of discretion that is fatal to the city's authority to apply the standard under the statute. The Group B decision turned on this very issue. There a condition on a 1981 land use approval was a standard for the new decision. The meaning of the standard was ambiguous - so ambiguous that it could be interpreted to allow or disallow the project. As a result, LUBA held that it could not be applied. A condition that requires such interpretation, to determine whether proposed needed housing is allowed at all, is not a "clear and objective" standard or condition within the meaning of ORS 197.307(4)." [Decision at 11 line 101 Because Condition 12 is ambiguous regarding whether any development (including needed housing) of Tract B is allowed at all, and is not clear and objective, the city cannot apply Condition 12 to prohibit the proposed needed housing, or as a vehicle to subject the proposal to subjective approval standards at LDC 10 2.5.40.04." [Decision at 15 line 1.] The very same rationale applies here. If the Hearing Official abandons the notion that the plain language of the standard allows the use, then he will need to choose between two competing interpretations - one that allows the use and one that prohibits the use. In that event he should find that the 19 Lot Rule may not be applied under the statute, as explained in Group B. 5. Potential escape from the 19 Lot Rule by using the General Standards track does not make the 19 Lot Rule OK under the statute. This issue is addressed in Part II of the City Attorney's memo and at page 5 of the November 12 Staff Memorandum. The City position is that if the property can't be developed under clear and Eugene Hearing Official November 23, 2015 Page 12 objective standards, it is possible to develop it under the General Standards discretionary track. This is the "take your chances" option mentioned by the City Attorney. It does not comply with the statute. The City Attorney, and the City Staff, assert that it is OK under the statute to have a "General Track" with discretionary standards and a "Needed Housing Track" with clear and objective standards that prevent development. That situation gives an owner, who is entitled to protections of the statute, a choice between the discretionary track or not developing at all. That forces the discretionary standards on the owner who wants to develop. This is contrary to the statute. As is plain on the face of the statute, and as explained in Group B, the City may only apply a discretionary track if the owner has the option of getting development approval under a set of clear and objective standards. Group B at 13 ("Because the city has identified no clear and objective approval process for needed housing on Tract B that an applicant could choose, the city cannot rely on ORS 197.307(6) to authorize imposition of the subjective standards for modifying the DDP [Detailed Development Plan] at LDC 2.5.40.04." Because the City may not force a developer of needed housing into the discretionary track, it follows that the City may not apply a standard under the clear and objective track that it is impossible for the owner to meet. That is the 19 Lot Rule, as the City reads it. The applicant requests the Hearing Official to hold that the City may not apply the 19 Lot Rule to this application because it would prohibit development. It is a clear and objective standard that prevents development, rather than one that allows development. As we explained in our hearing letter, LUBA struck down one standard in the new 2001 code that was clear and objective but was so stringent as to preclude all development. There the Home Builders challenged a stormwater discharge standard that was clear and objective but was so stringent that no development proposal could meet it. LUBA struck it down as a prohibition on development under the guise of a clear and objective standard. LUBA said: "2. Stormwater Runoff In section II.A.2.u, we held that LUCU 9.8325(10) imposes a clear and objective requirement that stormwater runoff from a PUD will not "create negative impacts on natural drainage courses" such as erosion, turbidity or sediment transport, "due to increased peak flows or velocity." We agreed with the city that, while LUCU 9.8325(10) may be difficult to meet, its prohibition on negative impacts of the specified type is clear and objective. Petitioners argue that, even if LUCU 9.8325(10) is clear and objective, it nonetheless offends the needed housing statute, because it is so difficult to meet that it effectively forces needed housing applicants to opt for the alternative, discretionary track. [FN36] Petitioners submit that rain falls on all development, and all water moving across ground carries some sediment, creates some turbidity, and has some erosional Eugene Hearing Official November 23, 2015 Page 13 component, no matter how minute, and therefore no PUD could possibly comply with LUCU 9.8325(10). "We agree with petitioners, at least in the abstract, that imposing a clear and objective standard that is impossible or virtually impossible to meet is a prohibition in the guise of a standard. ORS 197.307(3)(d) allows the city to offer a discretionary approval track, "provided the applicant retains the option of proceeding under the clear and objective standards[.]" That option is illusory if the clear and objective standards are impossible to satisfy. It may not be the case that LUCU 9.8325(10) is impossible to satisfy. However, the city provides no assistance on this point, or indeed any response to this subassignment of error at all. Accordingly, we sustain this subassigmnent of error." [Home Builders at 419] The Hearing Official should adopt this same rationale. In this situation, as applied, the 19 Lot Rule is a prohibition on development in the guise of a clear and objective standard. The City Attorney responds to this argument at page 5 of her memorandum. She reframes the applicant's position. The reframe is not correct. The applicant's position is this: An applicant who invokes the clear and objective standards track to develop property that is on the BLI may not be denied based on a clear and objective standard that is impossible to meet for that site; such as standard may not be applied because it is a prohibition in the guise of a standard, as LUBA explained in Horne Builders. a. The applicant is not saying that all needed housing applications are entitled to an approval. Page 5 Part A of the City Attorney memorandum creates a straw person. She mischaracterizes the applicant's position as asserting that any needed housing application is entitled to an approval. Not so. Any needed housing application is entitled to an approval if it meets the standards that are clear and objective and are possible to meet. Here there is one that, under the city's approach, is impossible to meet at this site simply because other properties in the area are already developed. Under the city's theory, the City could force all needed housing applicants into the discretionary track by adopting a clear and objective standard that is not possible to meet because the offensive standard exists only under the needed housing track. LUBA found one such standard in the Home Builders facial challenge to the current ordinance adopted in 2001 - the stormwater standard discussed above. That standard was impossible for anyone to meet; so it did not pass muster under the statute. The City was required to remove it from the code. There is no material difference between the stormwater prohibition struck down in Home Builders and the 19 Lot Rule, which is a prohibition for this site. The gist of the city position appears in the last paragraph on page 5: "In Eugene, where an applicant cannot comply with a clear and objective approval criterion, it can take its chances and Eugene Hearing Official November 23, 2015 Page 14 apply for approval under the alternative, discretionary track." That position is contrary to the statute. It is the very same position that LUBA rejected in Home Builders when it tanked the stormwater standard. As LUBA explained in Group B, every needed housing applicant needs to be able to find a way through the clear and objective standards to an approval. b. The statute requires that each developer of needed housing is entitled to a path to approval under clear and objective standards, not that some developers are entitled to such a path. The city's final spin is that only some developers of needed housing need to have a path to development, not all of them. The City cites no authority for this proposition. If one entertains this thought, it leads to an obvious question - How many developers of needed housing would it be OK for the City to prohibit from a clear and objective path to development approval? Taking as an example the stormwater standard that LUBA struck down, how about if the City had readopted that original standard, exempted out the drainage basins in northeast quadrant of the City, but left that prohibition in place everywhere else. Here the City is suggesting that would be OK under the statute. Not likely. The City can't suggest why that would be so. 6. The potential to file five separate partition applications in three consecutive rounds in order to escape the 19 Lot Rule also does not comply with the Needed Housing Statute because it unreasonably increases the costs and delays the provision of needed housing. At the hearing, in their oral remarks, Staff asserted that the site could be developed by partitions under the Needed Housing Track, avoiding a PUD, and thereby avoiding the 19 Lot Rule. The undersigned was skeptical in the moment, asserting that a PUD would be needed, subjecting development to the 19 Lot Rule. On closer review of the code, Staff is correct. Staff elaborated on the availability of the Needed Housing Partition option at pages 3-4 of their November 12 memorandum. As the Staff Memo explains, a partition of up to three parcels that does not create a street can be done with a "Needed Housing" partition, outside of the PUD process, which would avoid the 19 Lot Rule. In order to get to the same development proposed here, the applicant would need to go through the partition process five times in three successive rounds. The first partition would create three parcels. The second round would request three more partitions, that is three more applications - one creating three parcels from each of the initial three parcels. That would get the applicant to nine parcels. One more partition round would be needed to get to ten parcels; one of the nine parcels would be divided in two. Put differently, the Staff is saying that the applicant could get to where it proposes to go here (the creation of ten buildable lots under clear and objective standards) by filing five separate partition applications instead of one PUD application and the related subdivision application. It is important to note that, under the code, both a PUD and a partition have two discrete steps - a tentative approval, and then a final approval. Additional tentative applications on a subject property cannot be submitted until the final approval application has been approved. Eugene Hearing Official November 23, 2015 Page 15 a. Impacts of shifting to the partition process. The City is suggesting that the applicant can take the longer, slower, more expensive way around the block to get to exactly where it says the applicant can't go under the Needed Housing PUD process. The process is slower because there would be three complete rounds of applications and approvals needed from the City. That would be: the first partition creating three parcels; the second round of partitions creating a total of nine; and the third creating the tenth. These three discrete steps would take a lot longer than the process anticipated here. Each partition approval involves a tentative approval and then a separate review for final platting. The PUD process anticipates a tentative PUD application, which can become final in conjunction with the tentative subdivision approval; final subdivision platting follows. Put differently, the PUD process involves 1.5 rounds of processing (tentative PUD; final PUD/tentative subdivision; and final plat), while the partition approach involves three rounds of processing. Aside from the three rounds of applications rather than 1.5, there are other aspects of the partition approach that slow down the entire process of preparing applications for submission. Initially, five discrete applications are needed, rather than just the PUD and associated subdivision. This means five separate application packages need to be assembled by the applicant's professionals, including five discrete tentative and final plat maps. There is also additional planning work that comes with the partition process. For example, each partition application must include a conceptual buildout plan for the balance of the site that demonstrates how lots larger than 13,500 sq ft could be further divided down to lots that comply with the size limitations in the code. This approval standard is in EC 9.8220(6): On R-1 zoned property, if the partition results in a parcel greater than 13,500 square feet in size based on EC 9.2761(5)(b), the application shall indicate the location of parcel lines and other details of layout that show future division may be made without violating the requirements of this land use code and without interfering with the orderly extension of adjacent streets, bicycle paths, and accessways. Any restriction of buildings within future street, bicycle path, and accessway locations shall be made a matter of record in the tentative plan approval. The lot size standard requiring a conceptual buildout plan for the balance of the property at the time of each partition submission appears in EC 9.2761(5)(b): Exceptions to the maximum lot size shall be granted if any of the following is met: * * * * The lot exceeding the maximum lot size is intended to reserve a large lot for future land division with feasibility demonstrated by a conceptual buildout plan. Eugene Hearing Official November 23, 2015 Page 16 It is worth noting that the conceptual buildout plan to be submitted with each partition application would have to cover the balance of the entire site. There is no 20% grading limitation in the Needed Housing partition standards. Therefore, the entire site is potentially developable. As a second example, a Needed Housing partition application comes with a requirement to inventory all trees on the site, have a certified arborist evaluate them according to the priorities in the code, and then demonstrate to the city how the tree preservation priorities in the code were "considered." See EC 9.8220(2)(k), which invokes the Tree Preservation and Removal Standards in EC 9.6880 through EC 9.6885, and EC 9.8685(2), which sets out the requirements to demonstrate consideration of trees. The Needed Housing PUD standards require none of this. Aside from the application fees, the cost of using the serial partition process to avoid the 19 Lot Rule will be significantly higher than for the PUD process. For example: There are the professional costs of preparing five tentative partition applications, rather than just the PUD and subdivision applications. There is additional cost for the inventory and professional costs associated with the tree inventory, documentation, and arborist certification required for each partition application. There is the likely very significant costs associated with building out roads adjacent to the development site. The Staff concurs that Vivian Drive need not be developed due to the 20% slopes. Under the partition standards, however, there is no 20% grading limitation. Roads that are excepted out due to slope in the PUD process would be required under the partition process. b. Discussion The option proposed by the City would create the same number of lots, but with a lot more delay and a lot more cost. This would be contrary to the prohibition in the statute that would apply clear and objective standards (the 19 Lot Rule) but with unreasonable cost and delay in providing the needed housing. The City has not explained, and indeed cannot explain, why the 19 Lot Rule should be acceptable in an efficient process to get to a development plan, but should not be applied in the longer, slower, more expensive way to get to the same development plan. Applying the 19 Lot Rule in this PUD process begs for an explanation why it is reasonable. In summary, the Hearing Official should find that the 19 Lot Rule may not be applied because it would force the applicant into a process for development (successive partition applications) that would unreasonably increase the cost of and delay the provision of needed housing, contrary to ORS 197.307(4). Although the standard is clear and objective, it nevertheless can't be applied due to its impacts on cost and delay. Eugene Hearing Official November 23, 2015 Page 17 It is most appropriate to apply the "un reasonable cost or delay" clause of the statute in an "as applied" challenge to a code provision, as here. Indeed, in Horne Builders LUBA explained that the applicability of this clause (then codified at ORS 197.307(6)) will be most apparent in an as applied context. ORS 197.307(6) prohibits standards, conditions or procedures for approval that, either in themselves or cumulatively, discourage needed housing "through unreasonable cost or delay." The statute does not prohibit reasonable cost or delay. In our view, the question of whether approval standards or procedures discourage needed housing through unreasonable cost or delay cannot, in most cases, be resolved in the abstract, in a challenge to a legislative decision that adopts such standards or procedures. In the absence of actual application of standards or procedures in a particular case, it is difficult to see how any party could demonstrate what the delay or additional cost might be, whether that delay or cost is reasonable or unreasonable, and whether that delay or cost discourages needed housing, either alone or in combination with other standards or procedures. Because different sets of standards and procedures will apply to different applications in different areas of the city, demonstrating in the abstract that standards or procedures cumulatively discourage needed housing is rendered even more difficult. These difficulties are apparent in the present case, because the petitions for review make no attempt to demonstrate why any standards or procedures, alone or cumulatively, result in unreasonable cost or delay, much less what those costs or delays might be. While petitioners argue that certain standards or procedures are likely to increase cost or delay, they make no effort to demonstrate that such increased cost or delay is unreasonable, alone or cumulatively. With the possible exception discussed below, we believe it is highly unlikely that such a demonstration can be made or, if made, reviewed in a meaningful manner, except in the context of an "as-applied" challenge. [Home Builders at 422-423]. In Home Builders LUBA went on to strike down, as contrary to the statute, a code provision that required geotechnical information to be filed with an application when there was no standard relating to that information. That provision was facially contrary to the statute. That provision, while clear and objective, was facially contrary to the needed housing statute. The city's statewide Goal 7 (Areas Subject to Natural Disasters and Hazards) findings discuss the geotechnical analysis requirement at LUCU 9.6710, and suggest that "development must occur in accordance with the analysis' recommendations." Record 496. However, the city does not identify any standard that imposes that requirement, or that relies on the required geotechnical analysis in any way. As far as we can tell, the geotechnical analysis requirement functions only to supply the city with potentially expensive information that has no bearing on any approval standard. Consequently, we agree with petitioners that the requirement violates ORS 197.307(6). [41 Or LUBA at 423-424] Eugene Hearing Official November 23, 2015 Page 18 Here, in this as applied context, the Hearing Official can make the finding of unreasonable cost and delay where LUBA says it is most appropriate. There is no utility in forcing an applicant to go through a slower, more expensive review process in order to be able to develop the property under clear and objective standards. The sole effect of the 19 Lot Rule is to impose on the owner a slower and more expensive approval process. This violates the statute. 7. The 30-foot landscape may not be develop because the standard, applied according to its plain language, would prohibit development of the site for lack of access. In addition, if the City believes the standard must be interpreted in order to not be absurd, then the standard is not clear and objective. The landscaping setback standard is: EC 9.8325(3): The PUD provides a buffer area between the proposed development and surrounding properties by providing at least a 30 foot wide landscape area along the perimeter of the PUD according to EC 9.6210(7). This standard was the subject of our hearing letter dated November 3. It was responded to by Staff in a two page memorandum distributed at the hearing. It was not addressed in the staff's post-hearing memorandum of November 12. This standard is troublesome for any residential developer, based of how it was interpreted in the recent Deerbrook litigation. There is a 2004 Director Interpretation saying that fences are not allowed in the 30-foot landscape area. See Applicant Exhibit C. (Director Interpretation and Hearing Official decision on appeal). In the Deerbrook PUD matter, the Hearing Official interpreted the standard as allowing a fence to be placed on the perimeter of the property with the 30-foot buffer area to be inside the fence. Hearing Official decision, Exhibit A at 10-11. The Planning Commission reversed that, saying the fence had to be on the inside of the 30-foot buffer. Commission Decision, Exhibit A at 30-31. LUBA affirmed on that issue. Here we challenge the legality of applying the standard at all, for two reasons. But first a few words on real world impacts. As mentioned at the hearing, the inability to fence affects the marketability and value of lots. As explained at the hearing, the market wants fences. Having to fence inside the 30-foot buffer makes the buffer area an amenity for the neighbor rather than the lot owner, which further impacts value. The plain language of this standard does not invite the crack that the Director read into it in 2004, or any crack at all for that matter. The language is pretty simple. It requires the buffer on Eugene Hearing Official November 23, 2015 Page 19 the perimeter adjacent to "surrounding properties." That would include private property, such as adjacent private lots, and public property, such as streets. Surrounding is surrounding. The dictionary definition of "surrounding" also does not allow the exception that the Director read into it. See Webster's Third Neu, Int'l Dictionary (unabridged ed 2002) at 2302. "Surrounding * * * the circumstances, conditions, or objects by which one is surrounded." Applying this standard as it is written would not allow any development of the property. The standard would require the 30-foot buffer along West Amazon Drive, and that would preclude the private driveways needed for access. The fact that the Director pretends that the standard does not apply adjacent to any street does mean it is OK to apply the standard elsewhere around the property, as the Director would do here. Staff responded to this issue in their two-page hearing memorandum. The major pitch they make is that reading the standard as suggested by the applicant would lead to absurd results, and the Hearing Official should not put an absurd meaning on the standard. The Hearing Official should reject the invitation to treat the provision as absurd. That would then require the Hearing Official to interpret it in a way that is not absurd, and there is no guidance in the code context or in the legislative history as to how to trim it down to a correct reading. There is certainly no basis to endorse the meaning that the Director gave it in 2004. The simple alternative is to dispose of the standard the way the LUBA disposed of the storm water standard in 2002 - reject it as a development prohibition in the guise of a standard. Staff also suggest that it is too late in the life of the code provision to raise this issue. It should have been raised by the Home Builders in 2001; it should have been raised by the Deerbrook applicant; now the Planning Commission has spoken as to how to apply the standard. The Hearing Official gets a fresh crack at this standard, here and now, under the Needed Housing Statute, which applies directly. LUBA did not look at this standard among the 100 code standards that it did review in Home Builders. The Planning Commission in Deerbrook did not address the question of whether the standard can be applied at all. In summary, the landscape standard has two fatal shortcomings. First, the plain language does not allow access roads to penetrate the buffer; hence the standard prevents development; the statute requires that development be allowed under clear and objective standards, not prohibited. When this code standard was last interpreted in 2004, the Director opened a crack in it by saying that "surrounding properties" does not include adjacent city streets. The Hearing Official gets a fresh look at the standard here. Second, because the City concedes that the standard must be interpreted in order to its not leading to absurd results, the standard therefore is too ambiguous to be applied at all. See discussion of the 19 Lot Rule above and Group B. Any interpretation will either allow or disallow development, or dictate the scope of the limitation or conditioning to be applied under the standard. This discretion should be fatal to applying the standard at all. Furthermore, how Eugene Hearing Official November 23, 2015 Page 20 deep of a crack would the Director read into this standard? Is it only city streets adjacent to the site that afford relief from the buffer? How about a county street? How about a city owned property that is adjacent but not a street? How about school property? How about city owned Goal 5 property between the subject property and a stream? What is the scope of this crack that the Director sees in the meaning of the standard? The Hearing Official should hold that this standard may not be applied at all. Sincerely, Ed& 5 Q&" Bill Kloos Cc: Client Branch Engineering I 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON GROUP B, LLC, Petitioner, VS. CITY OF CORVALLIS, Respondent. LUBA No. 2015-019 FINAL OPINION AND ORDER Appeal from City of Corvallis. Bill Kloos, Eugene, filed a petition for review and argued on behalf of petitioner. David E. Coulombe, City Attorney, Corvallis, filed the response brief and argued on behalf of respondent. With him on the brief was Fewel, Brewer & Coulombe. BASSHAM, Board Chair; HOLSTUN, Board Member; RYAN Board Member, participated in the decision. REVERSED 08/25/2015 You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850. Page 1 I Opinion by Bassham. 2 NATURE OF THE DECISION 3 Petitioner appeals a city council decision that denies its application for 4 planned development approval for a 10-unit apartment building. 5 REPLY BRIEF 6 Petitioner moves to file a reply brief to two alleged new matters raised in 7 the response brief. (1) waiver of an issue, and (2) the city's argument for why 8 the city is not required to adopt findings addressing a code provision petitioner 9 argued is dispositive and in need of findings. The city objects to the reply brief, 10 arguing that it is not limited to new matters within the meaning of OAR 661- 11 010-0039. The objection is not well-founded, and the reply brief is allowed. 12 FACTS 13 A key issue in this appeal is whether the needed housing statute at ORS 14 197.307 applies to the proposed multi-family development. 15 The subject property is a vacant 0.81-acre lot created in 2006 as part of 16 the Coronado residential subdivision, known as "Tract B." At all relevant times 17 since 1981, the majority of the area that consists of Tract B has been and 18 remains zoned Planned Development (PD) RS-12 (Medium High-Density with 19 a Planned Development Overlay). A multi-family dwelling is a primary 20 permitted use in the (PD) RS-12 zone. Under the comprehensive plan 21 designation that applies to Tract B, the minimum density is five dwelling units 22 and the maximum density is ten units. 23 The planning and development history of the subject property and the 24 surrounding properties is complex. In the beginning was a 17-acre parcel (the 25 parent parcel) owned by the Elks Lodge. The area of Tract B is located in the 26 southeast corner of that parent parcel. In 1981, the Elks obtained a zone Page 2 I change from a low-density residential zone to PD (RS-12), and also obtained 2 Detailed Development Plan (DDP) approval to construct a congregate care 3 facility (a type of assisted living facility), known as The Regent Retirement 4 Residence (The Regent), on the eastern third of the parent parcel. The area of 5 the parent parcel subject to the 1981 DDP included what would later become 6 Tract B. In part to address concerns regarding conflicts between The Regent 7 facility and nearby residential development, the 1981 DDP included Condition 8 12, which limits the location of the congregate facility: 9 "The building shall be set back from Elks Drive no less than 30 10 feet, no less than 135 feet from the south property line, and no less 11 than 55 feet from the east property line. Other applicable setbacks 12 are included on the site plan." 13 The requirement that The Regent building be set back "no less than 135 feet 14 from the south property line" effectively prohibited The Regent building from 15 being constructed within the area that now consists of Tract B. 16 In 1992, the parent parcel was partitioned into three parcels: Parcel 1 17 (7.76 acres) included the existing Elks Lodge, Parcel 3 (3.12 acres) included 18 The Regent facility, and Parcel 2 (5.69 acres) included the vacant remainder of 19 the parent parcel, including what later became Tract B. The 1992 partition 20 effectively severed The Regent facility from the area that became Tract B. 21 However, the majority of the Tract B area remained subject to the 1981 DDP, 22 including Condition 12. 23 In 1998, as part of periodic review, Parcel 2 including the Tract B area 24 was included in the city's inventory of buildable lands, pursuant to Statewide 25 Planning Goal 10 (Housing). 26 In 2006, Parcel 2 of the 1992 partition was subdivided into the Coronado 27 subdivision, which created 57 lots and Tract B. The 2006 subdivision created Page 3 I NW Mirador Place, a cul-de-sac that ends adjacent to Tract B and provides 2 access to Tract B, via a short flagpole. The decision also approved sanitary and 3 water connections to serve Tract B. The 2006 decision removed the PD 4 overlay from the 57 residential lots, but did not remove the PD overlay from 5 Tract B. No development was proposed for Tract B. The staff report for the 6 2006 subdivision explains: 7 "It is important to note that Tract `B' contains the entire area of 8 Tax Lot 200 [Parcel 2] that is zoned PD (RS-12). The applicant 9 has chosen not to subdivide this portion of the parcel in order to 10 avoid having to apply for a Major Modification to a Detailed 11 Development Plan. The Detailed Development Plan that was 12 approved for The Regent Congregate Care Facility (DC-81-2, PD- 13 81-1), which was constructed on the parcel immediately north of 14 the PD (RS-12) portion of Tax Lot 200, also applied to that 15 portion of Tax Lot 200. Therefore, any development on this 16 portion of Tax Lot 200 would require a land use approval through 17 the Planned Development process." Record 2200. 18 The Coronado subdivision became final, and NW Mirador Place was 19 constructed as approved. 20 At some point thereafter, petitioner acquired Tract B. In 2012, petitioner 21 applied to the city for planned development approval for a two-story, 10-unit 22 apartment building, similar to the building currently proposed. The planning 23 commission denied that application. 24 In 2014, petitioner submitted the present application, with revisions to 25 address the bases for the denial of the 2012 application. Petitioner argued in its 26 application that, pursuant to ORS 197.307(4), the city cannot apply any 27 standards or conditions that are not clear and objective. See n 1. The planning 28 commission conducted a hearing and, on February 4, 2015, denied the present 29 application on three grounds: (1) inconsistency with Condition 12 of the 1981 Page 4 I DDP, which the planning commission apparently understood to prohibit any 2 building in the 135-foot area between The Regent building and Tract B's 3 southern property line, (2) inconsistency with planned development standards 4 at Corvallis Land Development Code (LDC) 2.5.40.04 that require that 5 proposed development be compatible with surrounding development, under a 6 number of different factors, and (3) inconsistency with cul-de-sac standards 7 adopted after 2006 that the planning commission understood to prohibit NW 8 Mirador Place from providing access to more than 18 dwelling units. 9 Petitioner appealed the planning commission decision to the city council, 10 which conducted a de novo hearing. On April 6, 2015, the city council issued 11 its decision denying the application. This appeal followed. 12 FIRST AND SECOND ASSIGNMENTS OF ERROR 13 Under these assignments of error, petitioner argues that the city erred in 14 denying the proposed multi-family development based on standards and 15 conditions that are not clear and objective, contrary to ORS 197.307(4). For 16 the following reasons, we generally agree with petitioner. 17 ORS 197.307(4) provides that, with one exception, "a local government 18 may adopt and apply only clear and objective standards, conditions and 19 procedures regulating the development of needed housing on buildable 20 land[.]"' The sole exception is where a local government adopts an alternative ' ORS 197.307 provides, in relevant part: "(3) When a need has been shown for housing within an urban growth boundary at particular price ranges and rent levels, needed housing shall be permitted in one or more zoning districts or in zones described by some comprehensive plans Page 5 as overlay zones with sufficient buildable land to satisfy that need. "(4) Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of needed housing on buildable land described in subsection (3) of this section. The standards, conditions and procedures may not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay. "(6) In addition to an approval process for needed housing based on clear and objective standards, conditions and procedures as provided in subsection (4) of this section, a local government may adopt and apply an alternative approval process for applications and permits for residential development based on approval criteria regulating, in whole or in part, appearance or aesthetics that are not clear and objective if: "(a) The applicant retains the option of proceeding under the approval process that meets the requirements of subsection (4) of this section; "(b) The approval criteria for the alternative approval process comply with applicable statewide land use planning goals and rules; and "(c) The approval criteria for the alternative approval process authorize a density at or above the density level authorized in the zone under the approval process provided in subsection (4) of this section. "(7) Subject to subsection (4) of this section, this section does not infringe on a local government's prerogative to: Page 6 I approval process regulating, in whole or in part, appearance or aesthetics that 2 are not clear and objective, if the applicant retains the option of proceeding 3 under clear and objective standards. 4 Generally, approval standards are clear and objective if they do not 5 impose "subjective, value-laden analyses that are designed to balance or 6 mitigate impacts[.]" Rogue Valley Assoc. of Realtors v. City of Ashland, 35 Or 7 LUBA 139, 158 (1998), aff'd 158 Or App 1, 970 P2d 685 (1999). Relatedly, 8 ORS 227.173(2) provides that: 9 "When an ordinance establishing approval standards is required 10 under ORS 197.307 to provide only clear and objective standards, 11 the standards must be clear and objective on the face of the 12 ordinance." 13 Further, ORS 197.831 places the burden on the local government to 14 demonstrate, before LUBA, that standards and conditions imposed on needed 15 housing that are required to be clear and objective "are capable of being 16 imposed only in a clear and objective manner."' "(a) Set approval standards under which a particular housing type is permitted outright; "(b) Impose special conditions upon approval of a specific development proposal; or "(c) Establish approval procedures." ' ORS 197.831 provides: "In a proceeding before [LUBA] or an appellate court that involves an ordinance required to contain clear and objective approval standards, conditions and procedures for needed housing, the local government imposing the provisions of the ordinance shall demonstrate that the approval standards, conditions and Page 7 I A. The Proposed Multi-Family Development is Needed Housing 2 The city's decision does not take a clear position on whether the 3 proposed development constitutes "needed housing" for purposes of ORS 4 197.307, but on appeal the city does not contend otherwise. Petitioner argues, 5 and we agree, that the proposed multi-family development constitutes "needed 6 housing" as that term is defined at ORS 197.303(1)(a),3 and Tract B constitutes 7 "buildable land" as that term is used in ORS 197.307. 8 Nonetheless, the city's decision articulates several reasons, amplified in 9 the response brief, why the city believes that ORS 197.307(4) does not 10 preclude the city from applying Condition 12 of the 1981 DDP and the planned 11 development standards at LDC 2.5.40.04 requiring "compatibility." 12 We note, initially, that there is no possible dispute that the planned 13 development standards at LDC 2.5.40.04 requiring "compatibility" with 14 surrounding development, based on 14 factors, are not "clear and objective" 15 approval standards. The LDC 2.5.40.04 compatibility standard requires 16 "subjective, value-laden analyses that are designed to balance or mitigate 17 impacts." Rogue Valley Assoc. of Realtors, 35 Or LUBA at 158. Under ORS 18 197.307(4), such standards generally cannot be applied to needed housing. As 19 we understand the city's decision, the city believes that LDC 2.5.40.04 20 compatibility standard can be applied to proposed development of needed procedures are capable of being imposed only in a clear and objective manner." 3 ORS 197.303(1) defines "needed housing" in relevant part as "housing types determined to meet the need shown for housing within an urban growth boundary at particular price ranges and rent levels, including at least * * * [a]ttached and detached single-family housing and multiple family housing for both owner and renter occupancy[.]" Page 8 I housing on Tract B, notwithstanding ORS 197.307(4), because Tract B is 2 subject to the 1981 DDP and Condition 12. 3 B. Condition 12 4 As noted, Condition 12 of the 1981 DDP provides: 5 "The [Regent] building shall be set back from Elks Drive no less 6 than 30 feet, no less than 135 feet from the south property line, 7 and no less than 55 feet from the east property line. Other 8 applicable setbacks are included on the site plan." 9 The city council found that Condition 12 is an approval standard for the 10 proposed development, and that the applicant must either satisfy Condition 12 11 or demonstrate that a modification of Condition 12 is warranted under the 12 compatibility standards at LDC 2.5.40.04. Record 21. The city council further 13 interpreted Condition 12, implicitly, to effectively preclude construction of the 14 proposed apartment building within the 135-foot "setback" described in 15 Condition 12. The city council ultimately denied the application because 16 petitioner could not satisfy Condition 12, and had not demonstrated that a 17 modification to Condition 12 would satisfy the compatibility standards at LDC 18 2.5.40.04. 19 Petitioner argues that Condition 12 is not a "clear and objective" 20 standard or condition within the meaning of ORS 197.307(4). Petitioner 21 contends that, while it is clear that Condition 12 prohibits the location of The 22 Regent building within 135 feet of the south property line, petitioner argues 23 that it is far less clear that Condition 12 has the effect of prohibiting other 24 development between The Regent building and the south property line of what 25 is now Tract B, or that Condition 12 effectively converts the area between The 26 Regent building and the south property line into an open space or buffer area in 27 which no buildings may be constructed, as the city apparently interpreted Page 9 I Condition 12. Petitioner argues that because Condition 12 is ambiguous on 2 that point, and requires interpretation to apply it as the city has in the present 3 case, the condition is not "clear and objective" and therefore cannot be applied 4 as a basis to deny the proposed needed housing. 5 The city responds that the city council correctly interpreted Condition 12 6 to impose a setback area between The Regent building and the south property 7 line of what is now Tract B, which effectively limits future use of Tract B to a 8 buffer area, and therefore precludes construction of the proposed apartment 9 building. The city argues that, under the city council's interpretation of 10 Condition 12, approval and construction of the proposed apartment building 11 would necessarily require a modification of Condition 12 and the 1981 DDP, or 12 a nullification of the 1981 DDP as it applies to Tract B. 13 ORS 197.307(4) mandates that local governments apply only clear and 14 objective "conditions" to needed housing on buildable land. The statute does 15 not limit the scope of "conditions" to conditions that are imposed in the 16 decision that approves needed housing. Neither does the statute exempt 17 conditions that are imposed by earlier land use approvals that do not approve 18 needed housing, such as the 1981 DDP. In addition, the city council 19 interpreted the city development code to the effect that Condition 12 20 constitutes not only a condition, but an approval "standard." ORS 197.307(4) 21 therefore governs the city's application of Condition 12, either as a condition 22 or as an approval standard. Consequently, the city may apply Condition 12 to 23 approve or deny the proposed needed housing only if and to the extent that 24 Condition 12 is "clear and objective." 25 We agree with petitioner that Condition 12 is ambiguous and requires 26 interpretation as applied to the proposed development. Condition 12 Page 10 I unambiguously prohibits the location of The Regent building within 135 feet of 2 the south property line of what is now Tract B. However, Condition 12 is 3 ambiguous regarding whether other development is similarly precluded within 4 the area that is now Tract B. Condition 12 mentions no other development or 5 buildings, and does not state, or necessarily imply, that no other building is 6 allowed within 135 feet of the south property line. On the other hand, 7 Condition 12 also does not state, or suggest, that other buildings can be 8 constructed within that 135-foot wide area consistent with the apparent purpose 9 of the condition, to buffer nearby single-family residences from The Regent 10 building. Condition 12 is sufficiently ambiguous on these points that it can be 11 interpreted to support either of two diametrically opposed conclusions, one 12 where needed housing is allowed and one where it is prohibited. A condition 13 that requires such interpretation, to determine whether proposed needed 14 housing is allowed at all, is not a "clear and objective" standard or condition 15 within the meaning of ORS 197.307(4). See Tiruniali v. City of Portland, 169 16 Or App 241, 246, 7 P3d 761 (2000) (a standard that is ambiguous, i.e., capable 17 of more than one plausible interpretation, is "unclear" and hence not a "clear 18 and objective land use standard" for purposes of the exclusion to LUBA's 19 jurisdiction at ORS 197.015(10)(b)(B)). 20 The city argues, nonetheless, that ORS 197.307(4) does not preclude the 21 city from applying Condition 12, as interpreted, as a basis to require petitioner 22 to obtain a modification or nullification of the 1981 DDP, pursuant to the 23 discretionary standards at LDC 2.5.40.04. We understand the city to argue that 24 because petitioner proposes a new building in an area where the 1981 DDP 25 approves no building, petitioner is necessarily seeking to redesign or modify 26 the 1981 DDP. As noted, a request to modify the 1981 DDP is governed by the Page 11 I discretionary planned development standards, at LDC 2.5.40.04, which require 2 a determination that the modification is "compatible" with surrounding 3 development with respect to 14 factors. Application of those discretionary 4 standards is consistent with ORS 197.307(4), we understand the city to argue, 5 because petitioner has essentially "opted" to pursue an alternative development 6 process subject to discretionary standards, as authorized by ORS 197.307(6). 7 See n 1. According to the city, petitioner has the option of either proceeding 8 under the "clear and objective" 1981 DDP "standards," including Condition 12 9 as interpreted by the city council, or proceeding under the discretionary 10 standards to modify the 1981 DDP, which are not clear and objective. Because 11 petitioner has elected to proceed under the discretionary standards to modify 12 the 1981 DDP, the city argues that application of those discretionary standards 13 to approve or deny the proposed needed housing is authorized by ORS 14 197.307(6) and does not offend ORS 197.307(4). 15 Petitioner argues, and we agree, that at no relevant time since 1981, 16 when Condition 12 and the PD overlay were first applied, has the city's land 17 use legislation offered a "clear and objective" path for approval of needed 18 housing on the area that is now Tract B. Petitioner's filing of an application for 19 a Planned Development Major Modification was required by the city code to 20 develop Tract B with the proposed needed housing, which is a permitted use in 21 the PD (RS-12) zone, not an "option" that petitioner voluntarily exercised for 22 purposes of ORS 197.307(6). Under ORS 197.307(6), a local government may 23 impose unclear, subjective or discretionary standards and conditions on needed 24 housing only if it offers a path that allows needed housing subject only to clear 25 and objective standards and conditions. We understand the city to argue that 26 the 1981 DDP (as interpreted) is itself clear and objective and that development Page 12 I under the clear and objective 1981 DDP was thus an available option for 2 purposes of ORS 197.307(6). We reject the argument. As discussed, 3 Condition 12, the most salient aspect of the 1981 DDP, is ambiguous regarding 4 whether the area of Tract B is developable at all, and is thus not a clear and 5 objective standard or condition. Moreover, even if Condition 12 or the 1981 6 DDP explicitly and unambiguously prohibited any building in the area now 7 comprising Tract B, we do not see that the 1981 DDP would constitute a "clear 8 and objective" alternative "approval process" for needed housing within the 9 meaning of ORS 197.307(6). Because the city has identified no clear and 10 objective approval process for needed housing on Tract B that an applicant 11 could choose, the city cannot rely on ORS 197.307(6) to authorize imposition 12 of the subjective standards for modifying the DDP at LDC 2.5.40.04. 13 The city also suggests that petitioner is bound by the choices of its 14 predecessor-in-interest in 1981, who chose to seek rezoning to PD (RS-12) and 15 development of the eastern third of the parent parcel under the planned 16 development process, in order to develop The Regent facility. Because the 17 predecessor-in-interest chose to take advantage of the flexibility offered by the 18 planned development process rather than pursue other options to develop The 19 Regent facility, the city argues that it is consistent with ORS 197.307(4) and 20 (6) to require petitioner to modify the 1981 DDP pursuant to the subjective 21 criteria at LDC 2.5.40.04. 22 We disagree with the city. We might agree with the city if the 1981 DDP 23 proposal had involved needed housing, and the applicant chose the Planned 24 Development process to gain approval of that needed housing, in lieu of a clear 25 and objective path to develop needed housing. Even though ORS 197.307(6) 26 had not yet been adopted in 1981, we see no reason why the two-track Page 13 I framework it embodies could not govern, and bind, current proposals for 2 needed housing that seek to modify a prior approval for needed housing under 3 a discretionary approval track that is otherwise consistent with ORS 4 197.307(6). However, the 1981 DDP did not propose or approve needed 5 housing, and the choices the 1981 applicant made in gaining approval for The 6 Regent do not force petitioner to accept a subjective approval track for needed 7 housing, or otherwise provide a basis for the city to avoid its obligation under 8 ORS 197.307(4) to apply only clear and objective standards and conditions to 9 proposed needed housing on buildable land. 10 Finally, the city notes that ORS 197.307(7) authorizes the city to 11 "[i]mpose special conditions upon approval of a specific development 12 proposal" and "[e]stablish approval procedures." See n 1. We understand the 13 city to argue that Condition 12 represents a "special condition" that was 14 imposed on the 1981 DDP approval, and the city can thus apply Condition 12 15 as a means to effectively force petitioner to seek approval under the 16 discretionary standards at LDC 2.5.40.04. However, as noted the 1981 DDP 17 was not a "specific development proposal" for needed housing, so ORS 18 197.307(7) has no applicability in the present case. Further, ORS 197.307(7) 19 does not purport to modify the terms of ORS 197.307(4), or authorize the city 20 to impose unclear or subjective standards, conditions or procedures. Read in 21 context, ORS 197.307(7) simply clarifies that local governments retain the 22 authority to craft individualized conditions for specific needed housing 23 proposals. However, such special conditions are still subject to overarching 24 requirement at ORS 197.307(4) that conditions imposed must be "clear and 25 objective." As discussed above, Condition 12 is not clear and objective. Page 14 I In sum, Tract B is zoned PD (RS-12) and subject to the 1981 DDP, the 2 city may apply any clear and objective planned development standards or 3 conditions to the proposed needed housing. However, because the proposal is 4 needed housing located on inventoried buildable lands, ORS 197.307(4) 5 prohibits the city from applying any unclear or subjective standards or 6 conditions to approve or deny the proposed needed housing. Because 7 Condition 12 is ambiguous regarding whether any development (including 8 needed housing) of Tract B is allowed at all, and is not clear and objective, the 9 city cannot apply Condition 12 to prohibit the proposed needed housing, or as a 10 vehicle to subject the proposal to subjective approval standards at LDC 11 2.5.40.04. 12 The first and second assignments of error are sustained. 13 THIRD ASSIGNMENT OF ERROR 14 As noted, NW Mirador Place was approved as part of the 2006 15 subdivision. As approved and constructed, NW Mirador Place is a cul-de-sac 16 that terminates adjacent to Tract B, provides access to Tract B and to 17 approximately 17 other lots in the Coronado subdivision, and also includes 18 utilities stubbed to Tract B. One basis for denial in the city council's decision 19 is noncompliance with LDC 4.0.60.c, which provides in relevant part: 20 "Street network plans must provide for connectivity within the 21 transportation system to the extent that, generally, both Local 22 Connector and Local Streets will be created within a development. 23 Identified traffic calming techniques, such as bulbed intersections, 24 etc., can reduce traffic speeds and, where included, are to be 25 constructed at the time of development. To further address traffic 26 speeds and volumes on Local Connector and Local Streets, the 27 following street designs, along with other designs intended to 28 reduce traffic speeds and volumes, shall be considered: Page 15 1 1. Straight segments of Local Connector and Local Streets 2 should be less than .25 mile in length, and include design 3 features such as curves and T intersections. 4 "2. Cul-de-sacs should not exceed 600 ft. nor serve more than 5 18 dwelling units. 6 "1 Street designs that include traffic calming, where 7 appropriate, are encouraged." (Emphasis added.) 8 The city council interpreted LDC 4.0.60.c.2 as a mandatory applicable approval 9 criterion for the proposed housing, and concluded: 10 "[T]he Council finds that the proposal does not comply with LDC 11 Section 4.0.60.c as it would result in as many as 27 dwellings 12 taking access from the NW Mirador Place cul-de-sac. Therefore, 13 the Council concludes that the proposal is inconsistent with and 14 fails to satisfy the criteria relating to traffic and off-site facilities." 15 Record 17. 16 Petitioner argues under the third assignment of error that the city erred in 17 applying LDC 4.0.60.c.2 to deny the proposed needed housing, because LDC 18 4.0.60.c.2 is not clear and objective. According to petitioner, LDC 4.0.60.c.2 is 19 a highly discretionary standard that by its terms applies to the design of local 20 streets, not to approval of development that is served by already designed, 21 approved and constructed streets. Further, petitioner argues that LDC 4.0.60.c.2 22 is framed in inherently discretionary terms: it requires that the city "consider[]" 23 street designs in at least three particulars. Street designs that include traffic 24 calming are "encouraged." Straight streets "should" be no more than .25 mile in 25 length, and "should" include curves and T intersections. Cul-de-sacs "should" 26 not exceed 600 feet nor serve more than 18 dwelling units. Petitioner notes 27 that LDC 1.6.30 defines the term "should" to mean "[e]xpressing what is 28 desired, but not mandatory." When the code intends to express a mandatory Page 16 I obligation, petitioner argues, it uses the word "shall," which LDC 1.6.30 2 defines as "[e]xpressing what is mandatory." 3 We agree with petitioner that LDC 4.0.60.c.2 is not a "clear and 4 objective" standard, and therefore cannot be applied to deny needed housing, 5 consistent with ORS 197.307(4). In order to apply LDC 4.0.60.c.2 to the 6 proposal, the city council had to interpret that code provision in at least two 7 ways. First, the city (implicitly) determined that LDC 4.0.60.c.2 applies not 8 just to the design of proposed streets, but also to proposed development served 9 by already designed, approved and constructed streets. Second, the city 10 concluded that the terms of LDC 4.0.60.c.2 are mandatory approval standards 11 that must be satisfied to approve development, not merely design features that 12 "should" be considered (but need not be imposed). Record 22. The merits of 13 the latter interpretation are somewhat dubious. Even with full deference 14 accorded a governing body's interpretation of code provisions pursuant to ORS 15 197.829(1) and Siporen v. City of Medford, 349 Or 247, 243 P3 d 776 (2010), it 16 is a tall order to interpret "should" as that term is defined at LDC 1.6.30 to 17 mean a mandatory obligation, because LDC 1.6.30 expressly defines it as non- 18 mandatory. In its response brief, the city argues that the modal auxiliary verb 19 "should" modifies only the first clause of LDC 4.0.60.c.2 ("should not exceed 20 600 ft") and does not modify the second clause ("nor serve more than 18 21 dwelling units"). However, that reading does violence to the grammatical and 22 semantic structure of LDC 4.0.60.c.2. "Should," as a modal auxiliary, clearly 23 modifies the main verbs in both clauses ("exceed" and "serve"). As defined by 24 LDC 1.6.30, "should" means "expressing what is desired." Read in light of 25 that definition, LDC 4.0.60.c.2 expresses the desire that a cul-de-sac serve no Page 17 I more than 18 dwelling units. As petitioner argues, such code language grants 2 the city a considerable degree of discretion. 3 However, regardless of how LDC 4.0.60.c.2 is correctly interpreted, or 4 what interpretations might survive review under ORS 197.829(l), the fact that 5 the city had to interpret LDC 4.0.60.c.2 in order to determine (1) whether it 6 applies at all to the proposed needed housing, and (2) whether it imposes 7 mandatory approval standards, means that LDC 4.0.60.c.2 is not a clear 8 standard for purposes of ORS 197.307(4). It is the city's burden to demonstrate 9 that LDC 4.0.60.c.2 is a clear and objective approval standard. ORS 197.831. 10 The city has not met that burden. 11 The third assignment of error is sustained. 12 FOURTH ASSIGNMENT OF ERROR 13 As noted, Tract B was created in 2006 with a 27-foot wide, 40-foot long 14 flagpole connecting the interior of Tract B to NW Mirador Place. After the 15 2006 subdivision was approved, the city adopted LDC 3.6.30, which requires a 16 maximum 25-foot front yard setback. As applied to Tract B, LDC 3.6.30 17 would require that any proposed building be located in the 27-foot wide 18 flagpole. Further, after 2006 the city also adopted LDC 4.10.60.0l.b, which 19 requires 40 percent of the street frontage to be occupied by a building. Again, 20 as applied to Tract B, this would require that any proposed building be 21 constructed in the flagpole. A staff report incorporated as findings concluded 22 that residential development of any density on the site would be "nearly 23 impossible" under LDC 3.6.30 and LDC 4.10.60.0l.b, and recommended that a 24 variance to those standards be allowed. Record 1552. Although it is not clear, 25 the planning commission apparently did not approve a variance to LDC 3.6.30 26 and LDC 4.10.60.01 .b. Page 18 I Petitioner argued to the city council that because LDC 3.6.30 and 2 4.10.60.01.b. were adopted after the 2006 Coronado subdivision that created 3 Tract B and NW Mirador Place, those standards do not apply to development 4 of Tract B, pursuant to ORS 92.040(2), which provides that only laws in effect 5 at the time an application is made for a subdivision inside an urban growth 6 boundary "shall govern subsequent construction on the property" unless the 7 applicant elects otherwise. 4 ORS 92.040 provides, in relevant part: "(1) Before a plat of any subdivision or partition subject to review under ORS 92.044 may be made and recorded, the person proposing the subdivision or partition or authorized agent or representative of the person shall snake an application in writing to the county or city having jurisdiction under ORS 92.042 for approval of the proposed subdivision or partition in accordance with procedures established by the applicable ordinance or regulation adopted under ORS 92.044. Each such application shall be accompanied by a tentative plan showing the general design of the proposed subdivision or partition. * * * [A]pproval by a city or county of [a tentative subdivision plan] shall be binding upon the city or county for the purposes of the preparation of the subdivision or partition plat, and the city or county may require only such changes in the subdivision or partition plat as are necessary for compliance with the terms of its approval of the tentative plan for the proposed subdivision or partition. "(2) After September 9, 1995, when a local government makes a decision on a land use application for a subdivision inside an urban growth boundary, only those local government laws implemented under an acknowledged comprehensive plan that are in effect at the time of application shall govern Page 19 I The city council rejected that argument, concluding that ORS 92.040(2) 2 did not preclude the city from applying post-2006 approval standards to the 3 proposed construction on Tract B.5 4 On appeal, petitioner argues, and we agree, that the city erred in applying 5 LDC 3.6.30 and 4.10.60.01.b to deny the proposed development of Tract B. As 6 the Court of Appeals has explained, ORS 92.040(2) is intended "to ensure that 7 the local government laws on which subdivision applications were predicated 8 would be applied to subsequent development on subdivision lots unless 9 developers elected otherwise." Athletic Club of Bend, Inc. v. City of Bend, 239 subsequent construction on the property unless the applicant elects otherwise. "(3) A local government may establish a time period during which decisions on land use applications under subsection (2) of this section apply. However, in no event shall the time period exceed 10 years, whether or not a time period is established by the local government." 5 The city council findings state, in relevant part: * * [T]he City Council finds that ORS 92.040 does not apply in this case because the applicant in [the 2006 subdivision] did not propose development on the subject site within the general design of the proposed development, the tentative plat decision did not create a `lot' on the subject site and the approval of the subdivision did not therefore include consideration of development-related criteria on the site, traffic impacts associated with development, or any other applicable criteria. The Council finds the labeling of the subject site as a `tract' to be consistent with the owner's express intent not to develop the site as part of the subdivision, but at a later time, as may be approved consistent with the standards and conditions of the Planned Development overlay or as a modification to the Planned Development * * Record 12. Page 20 I Or App 89, 97, 243 P3d 824 (2010). In the present case, the 2006 subdivision 2 created Tract B in its current configuration, with a short, narrow flagpole 3 accessing NW Mirador Place. That configuration presumably complied with 4 whatever maximum building setback and frontage requirements, if any, which 5 were in effect in 2006. Under that configuration, it is clear that future 6 development of Tract B, if any, would occur in the flag portion of Tract B. 7 Although the 2006 subdivision applicant did not propose specific development 8 of Tract B, Tract B was provided access, utilities and a configuration 9 predicated on locating future development, if any, in the flag portion of the 10 property. 11 Application of the post-2006 maximum building setback and frontage 12 requirements at LDC 3.6.30 and 4.10.60.01.b would radically change the 13 ballgame. As we understand it, application of LDC 3.6.30 and 4.10.60.01.b 14 would compel any proposed building to be located in the narrow pole portion 15 of the property (where a driveway and utilities must also be located), which the 16 city's own findings state would make residential development of any density on 17 the site "nearly impossible." Record 1552. A site that was configured and 18 provided access and utilities in a manner that would allow the site to be 19 developed in the future, presumably with the medium-density residential use 20 for which it is planned and zoned, would become unbuildable for any 21 residential use. In our view, the present case is one of the circumstances in 22 which the legislature intended ORS 92.040(2) to operate, at least to the extent 23 necessary to preserve the potential for future development of Tract B embodied 24 in the configuration approved in the 2006 subdivision. 25 The city's arguments to the contrary are not persuasive. The city 26 contends that petitioner fails to establish the conditions precedent for Page 21 I application of ORS 92.040(2). According to the city, a developer can invoke 2 ORS 92.040(2) only if (1) at the time of subdivision approval it complied with 3 the ORS 92.040(1) requirement to provide a "tentative plan showing the 4 general design of the proposed subdivision or partition[,]" (2) the tentative plan 5 provides information on proposed development of the lots created, and (3) the 6 subdivision approval evaluates proposed development of lots against the 7 applicable criteria, in this case the planned development and other standards 8 that applied to the 2006 subdivision application. However, the city argues, the 9 2006 subdivision applicant submitted a tentative plan that proposed no 10 development of Tract B, and no development of Tract B was evaluated against 11 the applicable criteria or approved in the 2006 decision.6 Therefore, the city 12 argues, ORS 92.040(2) does not apply to preclude application of post-2006 13 standards such as LDC 3.6.30 and 4.10.60.01.b. 14 We partially agree with the city. Because the 2006 subdivision applicant 15 did not propose development of Tract B, and the city did not evaluate any 16 development of Tract B against whatever criteria would be applied to proposed 17 development of lots at the tentative plat stage, ORS 92.040(2) would not 18 generally operate to shield future development of Tract B from application of 19 new development standards adopted after 2006 that regulate development of 20 Tract B. However, as explained above, the 2006 subdivision decision did make 21 a significant decision regarding the general location of future development on 6 The city also emphasizes that the 2006 plat did not label Tract B as a "lot," and argues that Tract B is not a "lot." We do not see that labels matter in the present case. As a matter of law, a unit of land created by a subdivision is a "lot," no matter what the unit of land is labeled on the plat. See ORS 92.010(4) and (16) (definitions of "lot" and "subdivide land"). For what it is worth, Tract B is technically a "lot." Page 22 I Tract B, namely, that any future development would occur in the flag portion of 2 the site, consistent with whatever maximum building setbacks and frontage 3 standards, if any, which were in effect in 2006. Tract B was clearly not 4 configured with the expectation that future development would occur in the 5 pole portion of the site. On the contrary, the pole portion of the site was 6 presumably sized and configured to allow a driveway and utilities to access the 7 interior of the site, where future development would occur. Because the 2006 8 decision accomplished that much, ORS 92.040(2) operates to preclude 9 application of different or conflicting post-2006 development standards, 10 specifically the new maximum building setback and frontage standards at LDC 11 3.6.30 and 4.10.60.0l.b, because those standards would effectively compel 12 development to be located in the pole portion of the site. Accordingly, we 13 agree with petitioner that the city erred to the extent it denied petitioner's 14 application for noncompliance with LDC 3.6.30 and 4.10.60.0l.b. 15 The fourth assignment of error is sustained. 16 FIFTH ASSIGNMENT OF ERROR 17 The fifth assignment of error is framed as an alternative challenge, if 18 LUBA concludes that the city is not limited by ORS 197.307(4) or that LUBA 19 agrees with the city that petitioner "opted" for application of discretionary 20 standards for purposes of ORS 197.307(6). Because we did not reach the 21 predicate conclusions, there is no need to address the alternative fifth 22 assignment of error. 23 DISPOSITION 24 We have sustained petitioner's challenges to the city's bases for denial. 25 Petitioner seeks reversal of the decision. The city does not argue that remand is 26 the appropriate disposition if petitioner's assignments of error are sustained. Page 23 I OAR 661-010-0071(1)(c) provides that LUBA shall reverse a land use decision 2 if the decision violates a provision of applicable law and is prohibited as a 3 matter of law. OAR 661-010-0071(2)(d) provides that LUBA shall remand a 4 land use decision for further proceedings when the decision misconstrues the 5 applicable law, but is not prohibited as a matter of law. As we understand the 6 current posture of this case, the city has identified no valid basis to deny 7 petitioner's application for needed housing. Accordingly, we believe that the 8 city's decision to deny the application is "prohibited as a matter of law," and 9 that reversal rather than remand is the appropriate disposition. 10 The city's decision is reversed. Page 24 Planning Receipt O, Planning & Development Planning Division 99 West 10th Avenue Eugene, 97401 (541)682--5 5377 Received Date: ~Z a From H • _ en nnc, L&~n4,y' Address 0 Method of Payment: ❑ Cash Check Visa/MC Amount Received Phone M~) ~~(?j ~iS f 1$ qI' 5-3 P t ► rojec 1ov'I' (L Enter amount: Annexation 1 Tentative I I 1 I Appeal q7 i q Subdivision, Final i s q s s Conditional Use Traffic Impact Permit $ Analysis $ Legal Lot Verification Vacations (all) Lot Validation Willamette Greenway $ Permit $ Partition, Tentative Zone Change I Partition, Final Other Property Line Fire Review Fee Adjustment $ is PUD Tentative $ Subtotal $ PUD Final Administrative Fee (except appeals) Site Review I l 7 $ TOTAL s y i 53 Staff Initials Updated: June 2015 t ~ CITY OF EUGENE BUILDING & PERMIT SERVICE 99 WEST 10TH AVE 682-5086 REG-RECEIPT:3-0011504 Dec 16 2015 CASHIER: HCH Appeal of Planning App De $8,744.53 TOTAL DUE: $8,744.53 RECEIVED FROM: HAMMER LUMBER COMPANY Check: $8,744.53 Total tendered: $8,744.53 Change due: $.00 www.eugene-or.gov/bldgpermittracking Please take our customer survey at: www.surveymonkey.com/s/COEPermitSurvey