HomeMy WebLinkAbout1st Open Record Period: City Attorney Comments
BROWN Daren M
From:SOMMERS Lauren A
Sent:Wednesday, March 21, 2018 4:53 PM
To:GIOELLO Nick R
Subject:FW: For Capital Hill PDT 17-1 Record
Memo for Capital Hill PDT 17-1 Record re Clear and Ojective Standards and South Hills
Attachments:
Study (00273828xBF8A9).pdf
Nick,
Please place the attached memo into the record for PDT 17-1, Capital Hill PUD.
Lauren Sommers
Assistant City Attorney
City of Eugene
541-682-8447
1
Date: March 21, 2018
To: Virginia Gustafson Lucker
From: Lauren A. Sommers
Subject: Capital Hill PUD PDT 17-1, Citys Response to Applicants Arguments re
Needed Housing Statutes and South Hills Study
Needed Housing/Clear and Objective Approval Standards
The applicant asserts that where an applicant is entitled to clear and objective
standards but there is no path to approval of the applicants chosen development under
the Citys adopted clear and objective standards, the City may not apply any approval
criteria to the development. The applicants arguments misconstrue the applicable law.
ORS 197.307 entitles a residential developer in Eugene to choose between two paths
for seeking approval of a residential development. The applicant is entitled to submit a
residential development proposal that is designed to address a set of prescriptive clear
and objective approval standards. In the alternative, the applicant may choose to
submit a residential development proposal that is designed to address a set of
discretionary approval standards. Contrary to applicants argument, the statute does
not entitle an applicant to approval of a proposed development that fails to meet the
approval standards applicable to the submittal path the applicant has chosen. ORS
197.307(4) does not deprive local governments of the authority to adopt and require a
developer to meet standards for residential housing development. ORS 197.307(4)
simply requires that the City to provide the path for review under prescriptive clear and
objective standards. ORS 197.307(6) allows the City to also offer an alternative path for
review under discretionary standards.
The City of Eugene has adopted two sets of approval criteria for Planned Unit
Developments (PUDs). EC 9.8325 contains the clear and objective or needed
housing approval criteria. EC 9.8320 contains the discretionary or general PUD
approval criteria. Every PUD applicant has two options; 1) choose the certainty of clear
and objective standards and tailor the application to meet the approval criteria contained
in EC 9.8325 (the needed housing track); or 2) choose the discretionary standards
located in EC 9.8320 (the general track), which give the applicant more flexibility to
pursue the applicants chosen development.
Here, the applicant chose to utilize the general discretionary criteria of EC 9.8320. The
applicant now spends several pages of its March 5, 2018, hearing memo arguing that
{00273486;1 }
Eugene Planning Commission
September 19, 2013
Page 2
some of the approval criteria in EC 9.8320 are not clear and objective and therefore
cannot be applied to the applicant.
The approval criteria in EC 9.8320 are not intended to be clear and objective. Rather,
the criteria included in EC 9.8320 are intended to be discretionary, as allowed by ORS
197.307(6). As noted above, PUD applicants have the choice to proceed under the
clear and objective criteria contained in the EC 9.8325 needed housing track rather
than the discretionary criteria contained in the EC 9.8320 general track. Applicant
here chose to proceed under the discretionary criteria contained in the EC 9.8320
general track. Applicant now builds a straw man by arguing that that clearly criteria in
EC 9.8320 are not clear and objective. If the applicant wanted clear and objective
criteria, the applicant could have chosen to proceed under the clear and objective
criteria contained in the EC 9.8325 needed housing track.
At bottom, applicants arguments boil down to the assertion that ORS 197.307(4)
requires clear and objective standards that also allow a path to approval of the
applicants chosen development. Applicant cites to the Land Use Board of Appeals
(LUBAs) opinion in Home Builders Association of Lane County v. City of Eugene, for
the proposition that a clear and objective standard that is impossible or virtually
impossible to meet is a prohibition in the guise of a standard and the option of
proceeding under a clear and objective standards is illusory if the clear and objective
standards are impossible to satisfy. 41 Or LUBA 370, 420 (2002). However, for the
reasons explained below, LUBAs opinion in Home Builders is not applicable here.
The portion of the opinion in Home Builders to which the applicant cites, concerned a
storm water standard that LUBA determined was clear and objective, but the petitioners
in that case argued was objectively impossible to satisfy. Therefore, the petitioners
argued, because no PUD applicant could satisfy the clear and objective storm water
standard, every PUD applicant would be forced out of the clear and objective track and
into the discretionary track. LUBA concluded that the option of proceeding under a
clear and objective standards is illusory if the clear and objective standards are
impossible to satisfy. 41 Or LUBA 370, 420 (2002).
However, in contrast to the situation posited in Home Builders, the clear and objective
criteria of EC 9.8325 are not impossible for every PUD applicant to satisfy. They simply
prevent this applicant from developing this site with this applicants chosen development
and utilizing clear and objective standards. The characteristics of this particular
development site (slope, elevation, etc.) prevent this particular applicant from
constructing the specific development of his choice while utilizing the clear and objective
criteria in EC 9.8325. However, the applicant can (and has to chosen to) proceed under
the discretionary standards of EC 9.8320.
{00273486;1 }
Eugene Planning Commission
September 19, 2013
Page 3
The fact that clear and objective standards may prevent a housing applicant from
building the applicants chosen development does not violate ORS 197.307(4), nor does
it entitle an applicant to waiver of all development standards.
South Hills Study
Contrary to the applicants assertion, the footprint of the South Hills Study (SHS) is not
limited to the properties to which it applied at that time of its adoption. The SHS itself
th
provides that its policies apply to properties located south of 18 Avenue and above 500
th
feet in elevation. Consequently, as properties located south of 18 Avenue and above
500 feet annex into the City, they become subject to the SHS. The property that is the
th
subject of this application is located within the City, south of 18 Avenue and above 500
feet; therefore, the property is now subject to the SHS, even if it would not have been
subject to the SHS when the SHS was originally adopted.
The resolution adopting the SHS (Resolution 2295, adopted June 10, 1974) provides
th
that the SHS is applicable to that area identified in the study as being south of 18
Avenue, above an elevation of 500 feet. The SHS did not (and does not today) include
a map showing specific plan boundaries.
Neither the SHS nor Resolution 2295 limit the footprint of the SHS to properties that
1
were located within the city limits at the time the Resolution was adopted.
Consequently, over time, as properties (including portions of the subject property)
th
annexed into the City, if those properties were located south of 18 Avenue and above
2
500 feet, those properties became subject to the SHS.
A review of the Summary and Recommendations of the Joint Parks Committee located
1
in the Preliminary Report attached to Resolution 2295 indicates that the Joint
Committee looked at areas both within and outside the city limits, as well as areas north
and south of the ridgeline. According to the Summary and Recommendations, the SHS
involved approximately 8,880 acres of land situated on both the north and south sides of
the Ridgeline, of which approximately 45% was within the city limits at the time.
Note that SHS policies are codified in EC 9.9630 and apply within the current City
2
limits, just like the rest of Chapter 9 of the Eugene Code. In addition, Lane County
adopted EC 9.9630 as part of the Urban Transition Area (UTA) code in 2003, and the
applicant acknowledges that the Metro Plan ratified the SHS. Therefore, today, the SHS
applies both to areas within the city limits and to areas outside the city limits but within
the UGB. By the time Tax Lots 201 and 100 annexed into the City in 2014, they had
already been subject to the SHS via the UTA code.
{00273486;1 }