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Eugene Planning Commission May 7, 2018 Page 5 The evidentiary issue is discussed in (b) above. No evidence was submitted after the record was closed. The Applicant carried its burden to show that no approval of development is possible on this site under a Needed Housing track in the code. The Applicant's initial submittal explained why the 20% grading limitation in Needed Housing track, EC 9.8325(5), prevents any development. One can't grade through the 20% slopes to get to the more level, developable ground on top of the hill. See graphic attached to March 3, 2017 Letter. See also March 5, 2018 Hearing Letter. With a cryptic allegation to the contrary in the Staff Report, and a fuller explanation in the staff's post-hearing memo, the city alleged that a 1.48-acre part of the site could be partitioned into several parcels under the Needed Housing Partition standards of EC 9.8220. See March 21 Staff Memo at 2. The Staff's proposal is summarized at page 4 of our Final Argument. The applicant then submitted rebuttal evidence to staff's theory in the second open record period. See March 30 Schirmer Satre Letter and accompanying Exhibits W and X. The Applicant's Final Argument explained, based on evidence in the record, why the code precludes partitioning of just part of the development site and requires, instead, a PUD for any development approval on the site. April 6 Final Argument at 4-9. In summary, the following errors are evident in the HO findings on the Needed Housing Statute issue and should be resolved by the Commission in favor of the Applicant: a. The HO erred in failing to find that, because this is an application for housing, the statute requires the City to provide a path for approval of housing under clear and objective standards. b. The HO erred in finding that the owner's entitlement under ORS 197.307(6), that the owner "retains the option of proceeding," is satisfied if the owner has the mere right to apply for approval under standards that do not allow some application to be approved. The statutory entitlement is for a path to approval under clear and objective standards, in this instance for a PUD approval because a PUD approval is required. c. The HO erred in finding that the owner's statutory entitlement to a path to approval under clear and objective standards requires an application under the Needed Housing code standards in EC 9.8325, which for this site preclude any approval. As the Court of Appeals explained to the City in Recovery House VI, an owner is allowed to apply under a set of standards and then argue that state law prohibits applying some of those standards. That is what the Applicant did here by applying under EC 9.8320. d. The HO erred in failing to find that as development of this site requires a PUD approval. Any development approval of this site does require a PUD. The Applicant made this showing. The Staff failed to rebut this showing.