EC 9.8325 preclude any development approval on this site. The statute prohibits the City from <br />applying any standards that are not clear and objective. In sum, ORS 197.307(6) prohibits the <br />City from applying any discretionary standards under the General Track because no PUD <br />approval is possible for this site under the Needed Housing track. <br />The City Attorney (in her March 21 memo to the Hearing Official), the Planning Staff (in its <br />March 21 memo to the Hearing Official), and the opponents' attorney (March 21 Sean Malone <br />Lttr to Hearing Official) all pitch slightly different defenses to the applicant's theory that ORS <br />197.307(6) shields the applicant from discretionary standards. We address those defenses <br />separately below. <br />Response to City Attorney: The City Attorney misstates the applicant's legal theory and <br />then debunks the misstated legal theory. <br />The memo from City Attorney Sommers at page 1 para 1 summarizes the applicant's theory as <br />asserting a right to approval of the applicant's "chosen development" under clear and objective <br />standards. The City Attorney repeats this mischaracterization at page 2 para 3: <br />"At bottom, applicant's arguments boil down to the assertion that ORS <br />197.307(4) requires clear and objective standards that also allow a path to <br />approval of the applicant's chosen development. " <br />That is not the applicant's position. Both our March 3, 2017 letter and our March 5 hearing letter <br />explain that no PUD can be approved under the Needed Housing standards at EC 9.8325. "The <br />application demonstrates that the applicant can't get approval of a PUD under the city Needed <br />Housing standards in EC 9.8325." Hearing letter at 4 item 4. Here we say it again. No PUD can <br />be approved on this site under the code's Needed Housing track in EC 9.8325 - not just the one <br />proposed here. <br />The City Attorney memo actually concurs with our reading of the law. "ORS 197.307(4) simply <br />requires that the City [sic] provide the path for review under prescriptive clear and objective <br />standards." March 21 memo at 1 para 2. This is the correct reading of the statute. The <br />applicant's point is that no PUD, regardless of how it is designed, can be approved on this site <br />under the code in the Needed Housing Track with clear and objective standards. <br />The City Attorney memo assumes throughout that some PUD can be approved on the site under <br />the clear and objective standards of EC 9.8325. However, the memo: (1) never explains what <br />PUD design might be approvable under clear and objective standards; and more significantly, the <br />memo (2) never takes issue with the applicant's statement that no PUD can be approved under <br />EC 9.8325 or its explanation of why that is so. To be more specific, the City attorney memo <br />never explains how development could proceed consistent with the limitation on grading 20% <br />slopes when the only land on the site that is less than 20% slopes must be accessed by grading <br />land on the site with 20% or steeper slopes. <br />APP C - Final Argument 4.6.2018 <br />