Hearings Official Decision - Laserfiche WebLink

evidence regarding how this property could not satisfy the EC 9.8325 criteria, that new evidence is not properly part of this record. Secondly, even if the applicant's response to the city's theoretical discussion did not include new evidence, the applicant's analysis does not establish that the EC 9.8325 process was not available to them. At most, it establishes that the applicant disagrees with the staff's theoretical analysis as to how the property could be developed under that process. While the applicant disputes the city's analysis, it is the applicant, and not the city, that must bear the burden of proof. Moreover, even if the applicant could establish that under ORS 197.307(4) the right to `proceed' under the city's clear and objective process guarantees the right to an approval under that process, ORS 197.307 provides no authority for the argument that the city must apply only what the applicant considers the clear and objective criteria included in its General track. There is nothing in ORS 197.307 to support the applicant's position that it has a right to have its PUD application reviewed under only a subset those provisions in the city's General track that the applicant considers clear and objective criteria. At most, even assuming the `right to proceed' under ORS 197.307(4) guaranteed the right to approval of some level of development, under ORS 197.307 the applicant would have the right to proceed under the clear and objective track. The applicant could have requested to develop the subject property under the clear and objective criteria. It did not do so. The applicant has requested review under the general track. All of the general track criteria are applicable to this review. b. Applicability of South Hills Study The City planning staff determined that, based on its location, the South Hills Study is one of the refinement plans applicable to the subject property. However, while acknowledging that the entire property is in the South Hills Study area, the applicant disputes the applicability of this plan. The applicant asserts that "This review is not subject to the policies of the South Hills Study (1974) for the reason that the SHS applied to the city limits in 1974, and the City has never extended the footprint of that refinement plan to the area that was outside the city limits at that time, which includes the area of the subject property." In what the applicant's attorney described during the public hearing as a "novel" theory, the applicant essentially argues that the city has been improperly applying the South Hills Study to all areas described as being within its boundaries for the last 50 years. The city's Staff Report correctly evaluates and determines that the South Hills Study applies to the subject property. The hearings official adopts the analysis of the staff report (February 28, 2018 staff report, pages 5-6, as supplemented on March 21, 2018. The City attorney further clarified the applicability of the South Hills Study, explaining: "Contrary to the applicant's assertion, the footprint of the South Hills Study (SHS) is not limited to the properties to which it applied at that time of its adoption. The SHS itself Hearings Official Decision (PDT 17-1) 12