Item 2: Ordinances on Minor Code Amendments (MiCAP Remand)

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The City’s findings in response to LUBA’s remand, including the City Council’s interpretation of the subject policy, follow. The West University Refinement Plan was adopted in 1982. It includes text in the following three categories: “findings, “policies” and “proposals.” In the Introduction section of the Plan, on Page 3, it defines these categories in terms of how each is to be used. With respect to “policies,” the Plan states: Policies are adopted by the City Council as guidance for decision-making related to the plan area. City programs, actions, and decisions, such as zone changes, traffic pattern changes, and capital improvements, will be evaluated on the basis of their ability to implement these policies as well as other adopted City goals and policies. Because they are adopted by the council as the City’s guide for action, policies are the most important statements in the plan. WURP, 3. The use of policies as “guidance for decision-making” is reinforced in a number of places throughout the Plan. For example, prior to the list of policies on Plan page 49, it directs the reader to “[r]efer to the definition of policy on page 3.” With this in mind, the City Council does not interpret Policy 3 as a mandate, prohibiting the Council from increasing parking requirements at this time. Even if Policy 3 were more than a guideline, by its very terms, the only mandate that could have been imposed by Policy 3 was the requirement that eight things be “taken into account” when the City updated its land use code. Of the eight things that Policy 3 lists to be “taken into account,” the one now at issue is most clearly not a mandate for a certain result. Unlike the other seven things on the list -- which begin with terms that direct a certain outcome (“reduce,” “redefine,” “enable,” “increase,” or “amend”) -- the item at issue only directs that the City “review” the existing code text “with the purpose of reducing” required parking. To the extent the Policy did operate as a directive, it only directed that the City Council, when updating its land use code, ‘take into account the need to review current parking requirements with the purpose of reducing the required number of spaces per unit.’ In fact, the City Council did so with the land use code update it adopted in 1993. That approach failed to alleviate the neighborhood’s parking problems and, as discussed below, it is consistent with the Plan to now take a different approach. Even if Policy 3 had been drafted in a way that could be interpreted as a mandate, the definition of “policy” and other Plan text explaining how the Plan is to be used make it clear that it would be erroneous to interpret Policy 3 as a mandate, especially a mandate that still controls in these circumstances. The Plan is now more than 18 years old. Since the Plan’s adoption, the City has tried a ‘one space per unit’ approach to parking in this neighborhood. However, that approach has not been an effective solution to the parking problems in the neighborhood. The Plan was not intended to make ineffective solutions mandatory. In the “Use of the Plan” section, the Plan refers to itself as a “flexible guide for specific decision making” and states that “[a]nalysis and/or testing of proposed solutions to problems may prove that they should become City policy or should be dropped.” WURP, 4. Consistent with this provision, the text of Policy 3 and the other Plan provisions discussed above, the City Council interprets Policy 3 as being a guide, but not a mandate. The Policy served as guidance with the City’s testing of a ‘one space per unit’ approach. The Policy now causes the City Council to be cautious as it increases the parking requirement, but it does not preclude the City Council from doing so. 4