Hearings Official Decision - Laserfiche WebLink

when the subject property was also subject to a PUD overlay. Also at issue, but not clearly decided, in that case was whether the city's clear and objective process, even if it was available, was facially defective in that no development could satisfy its requirements. While it is not entirely clear, the applicant does not appear to argue in this case that the city's clear and objective `track' is facially defective, i.e., that no development application could satisfy its requirements. Rather, it 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. The Corvallis enforcement order does not provide any authority for the applicant's argument. The Corvallis enforcement order resulted from process through which the applicant was not guaranteed the right to proceed under the clear and objective criteria: the City of Corvallis did not have an option within its code for the applicant to pursue its proposal under ORS 197.307(4). That enforcement order does not guarantee that (or even address whether) an applicant has a right to approval under clear and objective criteria. And it does not establish, or even suggest, that applicant has a right to `ask for and receive clear and objective approval criteria' independent of the city's established clear and objective `track.' It requires only that the city have a process under ORS 197.307(4) and that all residential development applicants have a right to `proceed' under that process. There is no question here that this applicant had the right to apply under the City's clear and objective track. Rather, it appears that the applicant is arguing that the right to `proceed' equates to a right to `approval' and that since the proposed PUD cannot be approved clear and objective approval criteria, the clear and objective track guaranteed under ORS 197.307(4) is not available to them. It does not appear that ORS 197.307(4) extends to guarantee every applicant a right to an approval under the clear and objective track. However, even if it does, the applicant hasn't established that the clear and objective track is effectively not available for the subject property. The applicant has summarily asserted that no development could be approved under the clear and objective track - and has attempted to shift the burden to the City, insisting that the city show how the clear and objective track could be used to approve some level development. The city Staff Report includes some analysis as to how the subject property could be developed under the clear and objective track. However, the city's evaluation is, necessarily, theoretical since it does not have an application based on those criteria before it. In its April 6, 2018 rebuttal, the applicant responded to the city staff's theoretical discussion of how this property could be development under the City's EC 9.8325 needed housing process by providing some testimony and evidence to dispute the city's analysis. Whether or not the applicant's analysis could be construed as evidence that perhaps no proposed development on the subject property could be approved under EC 9.8325, the hearings official rejects that analysis for two reasons: First, the applicant's April 6, 2018 submittal was for rebuttal testimony only and allowed no new evidence. To the extent the applicant April 6, 2018 submission includes new Hearings Official Decision (PDT 17-1) 11