Appeal Materials - Laserfiche WebLink

Fred Wilson, Hearings Official July S, 2016 Page 15 That is not the situation here. There is only one discretionary peril-lit application before the City and any subsequent building permit would be for development approved in the currently pending Application. Again the City Attorney Memo has altered and expanded the holding of the case to say something other than what it says. To wit, the City Attorney Memo argues that under Trrality, There land use approval does not result in overall master plan approval that governs all future aspects of the development, the goal post rule does not lock in development standards that are not applicable substantive approval criteria." Pg. 3. Trrality did not impose the "master plan approval" rubric the City Attorney MMemo advocates. Rather Trrality said that there was not a master plan approval process for siting an asphalt plant. Tuali~ 22 Or LUBA at 324. Trrality only used that terminology to distinguish this case from J.P. Firrlc~ & SOiZ v. ll%Ll.ihirrgton Corurty, 19 Or LUBA 263 (1990). The Trrality case turned on the fact that the property owner submitted a second, discrete land use permit "application" that was deemed to be a "distinct and subsequent application." As there is no second development permit application before the City asking for a different discretionary use, Trrality has no application to the case at hand. V. Rivera v. City of Bandon, 38 Or LUBA 736 (2000) In Rivera, petitioner applied for and obtained a conditional use permit in 1990 to build a single family dwelling. With the original permit, petitioner did not submit building plans. The permit was approved, provided the "plans do not exceed the height limitation." Rivera, 38 Or LUBA at 755. At the time of application for the 1990 conditional use permit, the building code regulations stated that the maximum building height was measured "from the floodplain or native ground elevation, whichever is higher." Rivera, 38 Or LUBA at 753-54. On October 8, 1991, that building code regulation was changed to indicate that building height was to be measured from "native ground level or grade." Rivera, 38 Or LUBA at 755. On October 31, 1991, petitioner submitted building plans shoNving a house measuring 28 feet from native grade. Rivera, 38 Or LUBA at 755. There were subsequent revisions to these plans, but ultimately the house was built measuring 33 feet from the top of the foundation footings to the top of the roof. Rhenz, 38 Or LUBA at 738. The petitioner alleged that the native elevation of the property was 15 feet above sea level and that the top of the house measures 28 feet from that level which complied with the height limitation. Rivera, 38 Or LUBA at 747. The city ultimately took the position based on the evidence before it that the native elevation of the property was only 10 feet above sea level and therefore the house measure 33 feet which was 5 feet in excess of the allowed height 11I1utatlon. Rivera, 38 Or LUBA at 745. In 1998, the city planner deter1111ned that because the house exceeded the 28 foot height limitation, a new conditional use permit was required. The petitioner prepared and filed a new conditional use permit. The planning commission