Attachment D <br />9. Ninth Assignment of Error: The Decision erred by finding the application met EC 9.8320(11)(k) <br />"All other applicable development standards for features explicitly included in the application <br />except where the applicant has shown that a proposed noncompliance is consistent with the <br />purposes set out in EC 9.8300 Purpose of Planned Unit Development: EC 9.2795 Solar Setback <br />Standards'The appellant asserts that the HO erred in his interpretation of the solar setback standard as follows: <br />Although the solar setbacks may be modified, the Hearings Official is required to understand <br />the extent of the modification to determine if it is consistent. with the purposes of the PUD <br />ordinance. The error made by the Hearings Official was to measure the solar setback from the <br />existing property line rather than the property line established by the required dedications <br />(Appeal Statement, page 17). <br />Staff notes that EC 9.8320(11) requires compliance with applicable development standards, but also <br />enables modifications to those standards if the PUD Purpose statements at EC 9.8300 are met. In the <br />case of solar setbacks, instead of granting a modification to the solar setback standards pursuant to EC <br />9.8300, the HO granted an exception pursuant to EC 9.2795(3)(c)(1) Exemptions to Solar Setback <br />Requirements, which states that a building is exempt from the solar setback standards when the <br />building will shade a non-developable area, such as designated open space, a public utility easement, <br />street or alley. The HO granted the exception based on the right-of-way being required along the entire <br />north property line (HO Decision, page 47). <br />If the PC determines that the HO erred, the decision could be modified to require compliance with the <br />solar setback standard. Alternatively, the PC could make findings to explain how the approval criteria <br />have not been met. <br />10. Tenth Assignment of Error: The Hearings Official made a decision that was not supported by <br />substantial, probative and reliable evidence in the whole record, and the Decision improperly <br />construed the applicable law." <br />A. Sub-assignment of Error 10.A: The HO errerd by not adequately considering the <br />preponderance of evidence and analysis in the "Constitutional findings for Exaction" <br />produced by the Eugene Public Works Department (PWD). <br />B. Sub-assignment of Error 10.B: the Hearings Official erroneously found that Oakleigh Lane <br />was not an "access lane." <br />C. Sub-assignment of Error 10. C. The Hearings Official used erroneous data for traffic counts <br />in on or more places..." <br />D. Sub-assignment of Error 10.D: The Hearings Official erroneously allowed the <br />impermissible new and non-responsive evidence submitted by the applicant's <br />Summary of Appeal Issues Page 12 <br />