Fred Wilson, Hearings Official <br />July 8, 2016 <br />Page 9 <br />petitioner was entitled to have a permit application judged by the approval criteria and <br />standards in existence on September 2, 1987." Khpal Liaht Satang7, 18 Or LUBA at 663 <br />(Emphasis mine). <br />As an outright permitted use, there were no "approval" criteria similar to the <br />approval criteria for a CUP or other discretionary, conditional land use applications, such as <br />the one in question in this case. However, there are of course "development" standards that <br />address dimensional minimums and maximums and operations such as setbacks, heights, <br />buffers, floor area ratio, hours and manner of operations, parking, crrculatlon, access, noise, <br />light and drainage. LUBA (and the Court of Appeals) held that the Goal Post Rule applies <br />to both "approval" criteria and "development" standards. If the City's position had any <br />merit in this proceeding, LUBA (and the Court of Appeals) would not have held that the <br />Goal Post Rule applied in Khpal Light Satrango because there were no applicable "approval" <br />criteria for the outright permitted use of a private school. The nonexistence of "approval" <br />criteria is itself a standard by which the application is judged. Sec also, Pete',1' Mountain <br />Hoineo)mers~zlss'ra, 227 Or App 140 (1990) (wherein the court held that a Measure 37 waiver <br />(i.e. the nonexistence of standards and criteria) is a standard and criteria for which the local <br />government must judge an application). <br />B. Caselaw Cited by the City Attorney Memo <br />i. Gagner v: City of Gladstone, 38 Or LUBA 858 (2000) <br />In Gagner, the property owner applied for a variance to allow for a zero setback for a <br />duplex to be constructed on his property. The variance was originally approved in July 1999 <br />and was valid for one year. After the approval of the variance, the uses permitted in that <br />zone (R-5) were changed in February 2000, with an effective date in March 2000, to prohibit <br />the duplex approved in the 1999 approval. In February 2000, the property owner applied <br />for his building permit. The permit was conditionally approved, but the city required that <br />certain conditions had to be met prior to the effective date of the zoning change. Although <br />the petitioner met those conditions by that deadline, lie was not able to get the county to <br />issue the permit prior to the deadline passing. a Subsequently, the county advised the <br />property owner that it would not issue the building permit due to the new zoning ordinance. <br />In overturning the city's denial, LUBA held that the Goal Post Rule compels the city <br />to issue the building perrnit(s) that were necessary to effectuate the already approved <br />variance based upon the standards in effect at the time of the application. Yet, the City <br />Attorney Memo reads this holding vary narrowly to say that: <br />"[T]he city may not apply development standards at the building <br />permit phase, where to do so would result in denial of a project <br />a The City of Gladstone had an agreement in place that Clackamas County would process and issue building <br />permits after the city deternuned that the building pernut complied with the city's code. <br />ACD-- <br />