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Re: MWMC SDC Methodology and SDC Rates Jun 22, 2004 Page 2 Relationships Among Facilities Plan~Project List, Methodology and SDC Rate Mr. Stamp asserts that the Facilities Plan and Project List mnst "be adopted and in place" prior to adoption of the SDC, citing ORS 223.309. Actually, that statute provides in pertinent part: "Prior to the establislunent of a systems development charge by ordinance or resolution, a local government shall prepare a capital improvement plan, public facilities plan, master plan or comparable plan ..." (Emphasis added.) The purpose of the statutory requirement is that the facilities plan and project list should precede adoption of the SDC rate. Here, the facilities plan and project list were prepared - even if not formally adopted - before the Methodology was presented to Council. The statute does not require the plan/list to be adopted before work on the Methodology begins. In terms of adoption, Council is being asked to approve the facilities plan and project list prior to approving the Methodology and SDC rate. The SDC statutes treat the Methodology and the SDC rate as closely related, but not identical. Although ORS 223.304 clearly requires that the reimbursement and improvement fees to follow frown the Methodology, it is also clear that not all changes to a reimbursement fee or improvement fee are changes to the Methodology. For instance, ORS 223.304(8) expressly provides: "A change in the amount of a reimbursement fee or an improvement fee is not a modification of the systems development charge methodology if the change in amount is based on ... [changes in cost of materials, labor, real property or similar factors]." Similarly, ORS 223.309(2) discusses the procedure to be followed when a proposed amendment to the facilities plan/proj ect list will result in an increase to the SDC rate. That statute makes no mention of mnending the Methodology. Incidentally, however, it does provide for judicial review of plan/list changes that would increase the SDC rate. Scope of Judicial Review At pages 3-5 of his letter, Mr. Stamp infers that MWMC seeks to avoid meaningful.judicial review of the Methodology or SDC rate. This argument is based on incorrect legal and factual assumptions: Staff has not intended to avoid judicial review and we recognize that the statutes would not permit it. Even if adoption of the l~lethodology and the SDC rate were temporally separated, which here they are not, the 60-day period to file a challenge to the Methodology would begin to run only when the Council adopted the SDC rate. See ORS 223.304(7)(b). In addition, contrary to Mr. Stamp's assertion that, "Surely, the city does not want to give individual property owners the opportunity to appeal the individualized assessment," Eugene Code section 7.735 authorizes appeals of case-by-case applications of the Methodology. Mr. Stamp's letter makes much of Mr. Jewett's written statement that certain exercises of professional judgment should not be subject to judicial review unless the action were arbitrary and capricious. Mr. Stamp argues that, because the "arbitrary and capricious" standard of review is not