Fairmount Neighborhood Association v. City of Eugene

EC 9.8325(5) prohibits “grading” on portions of development sites that meet or exceed 20% slope, but it does not prohibit all development, site improvements, or soil disturbance, such as “excavation.”

Petitioners appeal a planning commission decision approving with conditions a tentative planned unit development (PUD) and adjustment review. Applicant submitted their application under the city’s “needed housing” process set out in Eugene Code (EC) 9.8325. The city hearings official approved the tentative PUD and adjustment review with conditions. Petitioners appealed the hearings official’s decision to the planning commission, which adopted the hearings official’s decision, made additional findings, and approved the tentative PUD and adjustment review with conditions. This appeal followed.

EC 9.8325(5) requires that there be “no proposed grading on portions of the development site that meet or exceed 20% slope.” In the first assignment of error, petitioners argue the planning commission misconstrued applicable law and that its decision is not based on substantial evidence in determining that the proposed PUD satisfies EC 9.8325(5). While applicant proposes a development configuration that requires digging holes and trenches to install support posts and water lines in areas containing steep slopes, applicant argues this activity does not constitute “grading.” Instead, applicant argues and the city agrees that the proposed activity constitutes only “excavating,” a distinct activity involving digging but not necessarily leveling or changing the grade of the ground to prepare the area for further development. Petitioners, on the other hand, argue “grading” broadly means disturbing or moving any dirt and encompasses all development so that EC 9.8325(5) constitutes a general prohibition on any development on steep slopes. Resorting to dictionary definitions, other uses of the terms “grading” and “excavation” in EC Chapter 9, and prohibitions on all soil disturbing activities elsewhere in the EC, LUBA states that text and context support the city’s interpretation that the terms are separate and have different meanings. The first assignment of error is therefore denied.

Because petitioners did not reply to the city’s argument that the second and third assignments of error were not raised below and are therefore waived, LUBA agrees with the city that they were waived. The second and third assignments of error are therefore denied and the city’s decision is AFFIRMED.