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Eugene Planning Commission May 7, 2018 Page 3 "[I]t appears that the applicant argues that since development of the subject property cannot be approved under the city's clear and objective track, the city does not have a process under ORS 197.307(4) as it applies to this applicant. Based on that premise, the applicant argues it is somehow entitled to ask for and receive a review under a subset of the General track criteria - i.e., only the clear and objective approval criteria' within the General track." [Emphasis original] The Applicant's position is that some PUD site plan must be approvable under the Needed Housing standards of EC 9.8325, otherwise the statute prohibits the City from applying non- clear and objective standards under any review track. March 5 Hearing Lttr at 4 item 3; April 6 Final Argument at 2-3. The Applicant has never asserted that this site plan must be approvable under the Needed Housing standards in EC 9.8325. The HO may be saying that opponent's attorney Mr. Malone is correct that having the bare "right to proceed" to apply and get local review under a set of standards in the Needed Housing track that would prohibit approval of aM PUD site plan is all that the statute requires. HO at 11 para 4. If so, then the HO is suggesting that the rights created by the statute are illusory a nullity. That is nonsense. The HO also concludes that even if the Applicant is reading the statute correctly, and it does have an absolute right to get some kind of development approval under clear and objective standards, its application should have been filed under the Needed Housing standards of EC 9.8325. HO at 12 para 3. Now, exactly how would that work? We showed, with a site plan graphic, that no development is possible under Needed Housing standards of EC 9.8325, due to the 20% slopes on the site. See graphic attached to March 3, 2017, in Appendix A. Is the HO saying that if the applicant had applied under EC 9.8325 she would have excused compliance with the 20% grading limitation standard? Is that the position of the Planning Commission, too? Not likely. If the application had been filed under the EC 9.8325 standards, the Staff Report would have recommended denial, because of the 20% slope grading limitation. The HO would have followed through with a denial. Because no development could be approved under the Needed Housing standards of EC 9.8325, the Applicant was entitled to apply under the General Track standards of EC 9.8320 and ask the City to only apply clear and objective standards. That is the only approach that could result in an approval of the required PUD under clear and objective standards. Here the HO ignored the Court of Appeals' directive to the City in Recovery House VI v. City of Eugene, 150 Or App 382, 946 P2d 342 (1998). In Recovery House VI the Court told Eugene that even though an application is filed under a particular set of standards, the applicant is still entitled to a determination from the Hearing Official as to whether those standards may be applied in the first place. That is what the Applicant did here. The Applicant filed under the General Track standards but told the City that state law prohibits the City from applying some of those standards.