Fred Mson, Hearings Official <br />July 8, 2016 <br />Page 16 <br />subsequently deternuned that requirements for the 1998 conditional use permit were not <br />satisfied' and denied the application. Rivera, 38 Or LUBA at 7=13. <br />On appeal, LUBA held that there was substantial evidence in the record to allow a <br />reasonable decision maker to find that the native grade of the property at the time of <br />application, in 1990, was 10 feet. <br />The City Attorney Memo argues that under Rivera, `.`[a]s a general matter, the goal <br />post rule does not apply to construction and development standards where the land use <br />approval does not address the facts relevant to those standards." Pg. 1. Again, the City <br />Attorney Memo reads more than is there. This case was really about a factual dispute over <br />whether the native grade of the property was 10 or 15 feet. Ultimately, LUBA determined <br />that the city's determination of 10 feet was sufficiently supported by the evidence in the <br />record. If LUBA had determined that the native grade was 15 feet, that would have resolved <br />the case in the petitioner's favor, but that was not the outcome. <br />This case is similar to Tuality in that LUBA was not willing to extend the protections <br />afforded to applicants for a particular land use permit when other, discrete land use permits <br />are required in order to develop the property as proposed. As in Trralit),, in Rivera, LUBA <br />found that two discrete land use permit applications were in play and that the land use <br />regulation standards and criteria that applied in the earlier approved application did not fix <br />the goal posts for the subsequent land use permit applications. As stated above, there is no <br />requirement in the 2002 EC Chapter 9 for a CIR CUP to provide site plans, master plans, or <br />any other discrete land use application. The standards and criteria applicable to a CIR CUP <br />are found exclusively in the 2002 EC Chapter 9. <br />III. Conclusion <br />The City's position that the Goal Post Rule only applies to "approval" criteria and <br />does not fix the "development" standards at the time the application is first subn-iitted, is <br />simply wrong. The Goal Post Rule protects applicants from subsequent changes to all rules <br />of the game whatever they are called. All land use regulations, including development <br />standards, are fixed as of the date the application is first submitted. None of the cases cited <br />in the City Attorney Memo contradict the Applicant's conclusion. <br />The Applicant respectfully requests that you reject the. City's position and specifically <br />adopt the Applicant's proposed condition of approval that affirms the Applicant's position <br />and that is consistent with case.law. <br />Very truly yours, <br />.-approval of a conditional use pernut required that the portion of the house above 28 feet (the building height <br />limitation) did not "adversely affect the ocean or river views of existing structures on abutting lots." <br />ACDr-- <br />