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

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Mayor and City Council November 10, 2008 Page 2 The MiCAP history provides a recent and relevant example. City Council adopted twoMiCAP ordinances in August, 2008. The Home Builders Association(HBA) appealed both ordinances. The larger of the two ordinances (20417) had the “acknowledgement” language, so allsixteen amendments in this ordinance were delayed until June 2009 when LUBA deniedthe appeal of this ordinance. In other words, an entire set of important protections for Eugene neighborhoods was delayed for ten months because of an appeal that LUBA found had no merit at all. In the MiCAP appeal, it wasn’t until seven monthsafter the ordinances were adopted that LUBA got around to denying the HBA’s objection to the record and moving ahead with the appeal briefs and arguments. While the HBA appeal was a serious effort to have both ordinances remanded, and therefore involved significant legal expenses, a party just wanting to delay an ordinance long enough to file an application under existing code would not have to incur significant legal costs. Using an objection to the record, the party could – for minimaleffort and cost – get a delay long enough to submit theirapplication. The party could then drop the appeal and not have to even produce a brief explaining the basis of their appeal. To sum up: Including the “acknowledgement” language encourages any party who wants to delay an ordinance long enough to avoid having to comply with new regulations to file aLUBA appeal,regardless of the merits of the appeal.This makes all land use ordinances with the “acknowledgement” language vulnerable to the delay-by-appealtactic, regardless of how well the ordinance is crafted or how strong Council support is for the ordinance or how urgent the need is for the ordinance. The appropriate strategy The ACA worries that an ordinance that goes into effect thirty days after adoption may be remanded orreversedthereby creating an “on-again/off-again” situation. There is a very direct and appropriate way to minimize this risk: Planning staff and the ACA should do a thorough job of crafting the substantive ordinance provisions and providing adequate findings. Again, the MiCAP experience shows where the problem lies. LUBA did notfind that the City had made any error in the code amendments themselves. Instead, LUBA remanded one ordinance because Planning staff had simply failed to provide obviously required findings. If staff had done their job properly, LUBA would not have remanded the ordinance. Neither Portland nor Corvallis use anything like the “acknowledgement” clause for two very good reasons: a) Their staff told me they’ve never had a serious problem of the sort the ACA worries about; and b) such language is an admission the City lacks confidence that it has acted properly. The City Charter provision and dealing with exceptional situations The City Charter provides what Council should consider the standard provision for ordinance effective dates –i.e., thirty days after adoption, irrespective of an appeal. There are situations in which the effective date may need to be sooner, and the Charter provides for a 2/3 Council vote to adopt an “emergency” ordinance. There may also be situations in which Council decides longer than thirty days is necessaryfor affectedparties to adapt to significant changes in the code.