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Eugene Hearing Official March 5, 2018 Page 5 (a) The City claims the application should be reviewed under the discretionary standards in EC 9.8320 because the applicant filed under that section and addressed those standards. Staff Report page 4 last para. The applicant filed under the discretionary standards but has explained why the City may not apply any discretionary standards. The applicant is entitled to that determination. It does not waive its statutory rights to be free of discretionary standards by filing under discretionary standards. That is the plain message from Recovery House VI v. City of Eugene, 150 Or App 382, 946 P2d 342 (1998), where the Court of Appeals held that the applicant was entitled to the determination of whether a permit was needed in the context of applying for that permit. (b) The Staff Report asserts that a PUD proposing two additional dwelling units could be approved under the Needed Housing approval criteria. Staff Report page 5 para 2. The Staff Report says: "Based on a review of the site plan submitted by the applicant, staff believe that at least two additional units could be developed on the site if the applicant chose to proceed under the needed housing approval criteria." The applicant has explained in great detail, with the aid of graphics from its landscape architect, how the 20% grading limitation in the EC 9.8325 standards prevents approval of a tentative PUD on this site. The Staff Report assertion to the contrary is conclusory. If the City believes that the owner could rework the site plan to get any PUD application approved for this site under the Needed Housing standards in EC 9.8325, then now would be a good time to explain that. The applicant stated its theory to city staff over a year ago, but staff has yet to give the applicant an explanation of how the standards in EC 9.8325 could be applied to approve a PUD on this site. (c) The Staff Report misstates the operation of the statute. Page 5 para 3. The staff suggestion is that the applicant has two choices: (1) rework the site plan so that it complies with the clear and objective PUD standards; or (2) be processed under all of the discretionary standards. The correct order of the analysis should go like this: 1. Does the applicant for this PUD "retain[s] the option of proceeding under the approval process" stated in EC 9.8325? The answer is `No." 2. If the answer is "no," because the standards in EC 9.8325 do not allow approving a project on this site, then the City may not apply any discretionary standards under the approval track in EC 9.8320, which does allow approval of a PUD. APP B - HEARING LTTR 3.5.2018