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Kevin Foerstler April 14, 2004 Page 2 If the Order operates as a "standard or criterion" for approval, or if it was implemented under the Metro Plan, it is subject to the statutes quoted above. The Order was adopted pursuant to Eugene Code (EC) 7.280 and EC 2.019. EC 7.280(1) states: In order to create attractive and healthy neighborhood environments, no approval shall be granted for a development that involves the creation of a street unless the applicant has submitted and received approval of a street tree plan that ensures street trees will be planed and established in accordance with the standards and procedures provided for in this section and the adopted policies of the Urban Forest Management Plan. Further, EC 7.280(3) provides that: Upon approval of the street tree plan, and prior to approval of the final plat for subdivisions, planned unit developments, partitions, or approved development plans, the applicant shall: .. . These Chapter 7 provisions seem to require an applicant to enter into a street tree plan as a condition of subdivision, PUD and partition approval. However, we were unable to find in Chapter 9 a criterion/standard that requires a subdivision, PUD or partition applicant to enter into a street tree plan as a condition of application approval. To require, as a condition of approval, an applicant to enter into a street tree plan, such a requirement must be specifically listed (by reference to EC 7.280) as a criterion for approval of each of these developments in the appropriate sections of Chapter 9. If the requirement for a street tree plan in an approval criterion for subdivisions, PUDs, and partitions, the City must apply the street tree plan administrative rules in effect at the time that the applicant submitted his/her completed subdivision, PUD or partition application. Even if a street tree plan is not required as an approval criterion and is, instead, a later- imposed requirement on developers, a subdivision applicant is entitled to the Order in place at the time that it. See ORS 92.040(2). Even though the City cannot apply the Order to applications submitted prior to the Order's adoption date, the City can apply the amended fee schedule to every application, regardless of the application submission date. This is because the fee schedule is not a standard or criterion for approval and it does not implement the Metro Plan. By utilizing the amended fee schedule, the City will be able to apply its new methodology for calculating the street tree planning program fees to all pending and future applications. Please contact me if you have any further questions. HARRANG LONG GARY RUDNICK P.C. — CITY ATTORNEYS • & Ka ryn . Brotherton cc: Johnny Medlin