Volume 2 Cathedral Park Record (1 of 6)

The City Attorney opinion was responded to in detail by the Applicant on July 8. The City responded to our July 8 memo on July 15. However, nothing in the City's July 15 memo changes the Applicant's position. The Applicant does not wish to rehash the same arguments made in its July 8 memo, but it should be understood that the Applicant vehemently disagrees with the City's claim that the Applicant misreads the Gagnier v. City of Gladstone case. In fact, if the Hearings Official reads only one of the cited Goalpost cases, the Applicant suggests lie take a careful look at Gagnier. Contrary to the City's claim, it most assuredly supports the Applicant's position. In fact, the Applicant posits that it is the City that cherry-picks a phrase from the case to support its untenable position. The City takes the phrase "the protection provided by the [goal post rule] is not open-ended or absolute" from the case to suggest that Gagnier is not supportive of the Applicant's position. However, please read this phrase in context: "We believe the approval of a `permit' (i.e. `the discretionary approval of a proposed development of land') under ORS 227.160(2) and 227.178(3) carries with it the right to obtain the building permits that are necessary to build the approved proposed development of land, provided the applicant seeks and obtains those building permits within the time specified in the permit itself or in accordance with any applicable land use regulations that establish a deadline for seeking and obtaining required building permits. The building permit in this context performs a similar role to final plat approval following approval of a tentative subdivision plan (internal citations omitted). In that way, the ORS 227.178(3) requirement that an application for discretionary approval of a proposed development of land be judged by the standards that are in effect when the discretionary permit application is submitted is not rendered meaningless by having the discretionary `permit' decision approved under one set of standards and the building permits that are needed to make any use of the discretionary permit denied under a subsequent set of standards. Again, the protection provided by ORS 227.178(3) against changing land use standards is not open-ended or absolute; the permit applicant must seek and obtain building permits within the time specified in the permit itself or applicable land use regulations. However, if the permit applicant does so, he may not be denied such a building permit based on a change in applicable land use regulations that postdates the application for the discretionary permit." Gagnier at 865-866 (Emphasis in original). It should be emphasized that based on case law, the absence of a standard is a standard. In this case, under the 2002 Eugene Code, the Applicant was not required to obtain multiple discretionary permits. Had the 2002 Eugene Code required the Applicant to apply for and obtain discretionary permits in addition to the CUP applied for (such as a PUD or Site Review), and had the Applicant not made such application at the time, then perhaps the Goalpost statute would not apply to the discretionary permits not applied for. However, in this case, no additional discretionary permits were required; therefore, they are not required now. APPLICANT'S FINAL ARGUMENT - Page 3 Cathedral Park (CU 02-4) Record July 2016