Piculell v. City of Eugene

Under ORS 197.307(4), (1) the fact that different decision makers rely on different rationales in reaching similar conclusions does not mean that a standard is unclear; (2) failing to address future hypothetical changes to land use regulations does not render a condition unclear; and (3) a standard is more likely to be “clear and objective” where its purpose is clear from its text.

In 1974, the city adopted the South Hills Study (SHS), which offered development recommendations regarding land around the southern perimeter of the city. While the subject property was included in the study area, it was not annexed into the city until 1996. Later, petitioner applied for a tentative planned unit development (PUD) on the subject property. Under Eugene City Code (EC) 9.8325(12)(a), PUDs within the SHS study area may not develop land over 900 feet in elevation. During the proceedings below, the hearings officer (HO) concluded that the subject property was subjected to the SHS at the time of annexation. The planning commission (PC) affirmed, but concluded that the subject property was subject to the SHS simply because it fit the study area description. Thus, the city approved the application with conditions (1) prohibiting development on land above 900 feet and (2) requiring deed restrictions so that a portion of 21 lots would be maintained as common open space. This appeal followed.

Under ORS 197.307(4), local governments may only apply “clear and objective” standards and conditions to needed housing. In its first assignment of error, petitioner argues EC 9.8325(12)(a) is not “clear” because the HO and PC relied on different reasoning to reach the same conclusion. Because the fact that the HO and PC relied on different rationales in determining the SHS’s applicability doesn’t mean EC 9.8325(12)(a) is not “clear,” and because the purpose of EC 9.8325(12) is clear from its text, LUBA agrees with the city that it does not violate ORS 197.307(4). Petitioner also argues that the condition of approval prohibiting development on land above 900 feet is unclear because it doesn’t specify whether the condition continues to apply if EC 9.8325(12) is later modified. LUBA agrees with the city that failing to address future hypothetical changes does not render conditions unclear. The first assignment of error is therefore denied.

Under EC 9.8325(12)(c), PUDs within the SHS study area must be arranged such that at least 40% of the site is retained as common open space. Under EC 9.0500, common open space is defined as areas for the “use or enjoyment” of all residents, including the preservation or enhancement of natural resources. In its application, petitioner proposed designating portions of 21 lots as open space for visual enjoyment, but without providing physical access for residents. In its second assignment of error, petitioner argues EC 9.8325(1)(c) is not clear and objective because, while planning staff took the position that common open space must provide physical access to the property, the HO and PC concluded that it may provide visual enjoyment alone. LUBA agrees with the city that the disjunctive word “or,” while in some cases inclusive and others exclusive, does not make the standard unclear, especially since the definition of common open space includes areas that preserve or enhance natural resources and which are not physically accessible by residents. The second assignment of error is therefore denied and the city’s decision is AFFIRMED.