Item 7: Action: Ordinance on Infill Compatibility Standards Code Amendments

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November 10, 2009 Mayor Piercy and Eugene City Council City Hall, 777 Pearl Street, Room 105 Eugene, OR 97401 RE: Effective date on S-JW and other ICS ordinances Dear Mayor and City Councilors: At the recent Council work session on the three ICS ordinances, including the proposed S-JW special area zone, the Assistant City Attorney (ACA) explained why staff has included language in the ordinances that will prevent any ordinance that is appealed from going into effect until the appeal is fully resolved. While I have the greatest respect for the Assistant City Attorney’s expertise, her explanation considers only a narrow hypothetical “risk” and overlooks more substantial reasons the language should not be included in the ordinances. The following sections explain the problems with the “acknowledgement” language” and the appropriate alternative. If you’re short on time, please skip to the “Conclusion” section, which sums up the issues and recommendation. The effect of the “acknowledgement” language As the ACA explained, the “acknowledgement” languagedelays the effective date of an ordinance until any appeal is fully adjudicated. An appeal process may last from six months to two years or more. During that period, none of the important protections these ordinances provide to prevent further damage and destabilization of established neighborhoods would be in effect. For example, should the S-JW ordinance be appealed, families in the encompassed area would remain exposed to triplexes and fourplexes with 35-foot high walls being jammed within five feet of the families’ back yards. The protections offered by the three ordinances are urgent and should not be held up during a lengthy appeal. The “acknowledgement” language is not just unwarranted and unwise, it creates a strong incentive for a party to file a spurious appeal solely for the purpose of delaying the ordinance long enough for the appellant to submit a land use or building permit application under the existing code. It costs no more than about five hundred dollars in fees and mailing costs to file a “Notice of Intent To Appeal” (NOITA).The NOITA requirements are very simple and don’trequire a lawyer to prepare. After a NOITA is filed, the City must go to considerable expense to prepare a complete copy of all testimony and evidence of the proceedings. It’s also very simple (and costs nothing) for an appellant to object to the record produced by the City, and the LUBA process to resolve the objection can be very protracted.