Regarding Councilor Brown’s motion, here are some key points …
In response to the LUBA appeal of Resolution 5057 (Capstone MUPTE), which was based on the City’s failure to comply with the requirements of ORS 307.618(1)(b) and EC 2.945(6)(g)(3), the City Attorney submitted a Motion to Dismiss (June 19, 2012 ), in which the City claimed:
“The city’s finding, and corresponding condition of approval, provides that the project will need to conform with all local plans and planning regulations in order to receive the tax exemption; a determination of actual conformance will be made during the development permit approval process.”
In other words, it’s the City Attorney’s position that the City will evaluate and determine whether or not a MUPTE development project complies with comprehensive plan policies (including refinement plan policies) at the time the MUPTE recipient applies for land use, building or other permits related to the MUPTE development project.
According to other statements by the City Attorney, a MUPTE approval would not be a land use action unless the Council were to add language to the MUPTE ordinance that required evaluation of compliance with plan policies at the time of MUPTE approval. That is not what Councilor Brown’s motion would do. His motion simply requires that certain policies be in place and does not change the time at which those policies are evaluated.
The ordinance language recommended by the City Manager has a similarly structured requirement:
2.946 Multiple-Unit Housing – Threshold Criteria and Public Benefits.
(b) The council may expand the boundaries covered by sections 2.945 through 2.947 of this code to include one or more of the areas listed in this subsection (b) by adopting a resolution activating the area under either of the following circumstances:
1. Area planning is completed for the neighborhood; …
Presumably, to achieve any effect, the required “area planning” would result in Council adopting plan policies and/or code. Based on his prior statements, the City Attorney must not think that this requirement would turn MUPTE approvals into land use actions.
The legal effect of Motion Brown’s motion would be to clarify what “area planning must actually produce to be of any value in ensuring neighborhood compatibility.
“Area planning” is an undefined, meaningless term. In contrast the Metro Plan has established DLCD-acknowledged, clear definitions and processes:
“40. Refinement plan: … Refinement plans of the Metro Plan can include specific neighborhood plans, special area plans, or functional plans …”
41. Refinement planning process: Refinement plans are developed through a process which includes at least the following elements: a predetermined citizen involvement process, preestablished policy direction in locally adopted planning documents, and a planning commission and elected official process. ….”
Where an area in which MUPTE applications are to be allowed is covered by an existing neighborhood refinement plan, Brown’s motion would require a limited set of plan amendments. For other potential MUPTE areas, a new Special Area Plan would be adopted covering only the specific geographical area and tax-exempt projects with five or more dwelling units. In both cases, the required effort and time would be no more than required for legitimate “Area Planning” that resulted in Council adopting appropriate code and/or plan policies.