The Committee references as relevant the text contained in LUBA 2006-084 Butte Conservancy affirmed <br />decision, which is a quote from Rhyne v. Multnomah County, 23 Or LUBA 442 (1992) “…the local <br />government must assure that the second stage approval process to which the decision making is deferred <br />provides the statutorily required notice and hearing.” <br />If the Hearings Officer defers compliance with any approval criteria until a later stage, that stage must <br />include the same required notice and hearing as the PUD Tentative stage. Deferring a Type III approval <br />condition to a future Type II approval process does not comply with this requirement. <br />2. Issues Related to Preservation of Trees and Other Natural Features <br />The Planning Department states: “When reviewing these appeal issues, staff recommends the commission <br />consider that the land is zoned for residential use, and while standards for sensitive design are high, the <br />criteria do not require preservation of the entire site.” <br />The Response Committee has never stated that we require the applicant for the Capital Hill PUD preserve <br />“the entire site.” The we have insisted that the development meet the criteria for the codes, especially the <br />South Hills Study in relation to tree preservation and the forested ridgeline above 901 feet. We accept the <br />designated preservation and conservation tracts proposed, but express concern with assigning them to <br />CC&Rs that are not defined and stipulated in the development proposal. <br />Although the base zone is residential use, state law created the framework for overlay zones to protect <br />certain areas within city limits. The Capital Hill PUD falls within the South Hills Study area, which <br />imposes a higher standard than simple residential zoning. The Hearings Official claims that 9.9630 (1) (a) <br />does not apply to the Capital Hill PUD application because the land is not identified for park preservation <br />by the city, and that therefore the Hearings Official is not required to offer findings. According to <br />McGowan v. City of Eugene, LUBA No. 92-187, and Highland Condominium v. City of Eugene, LUBA <br />No. 98-082, the Hearings Official is incorrect. As stated in Highland, regarding “mandatory approval <br />standards” (page 20), “… the 901-foot Preservation Policy expressly requires that the City adot findings <br />does <br />addressing the purpose statements” (lines 12-13). According to these decisions, 9.9630 (1) (a) apply <br />to the portion of the Capital Hill PUD above 901 feet. The explicit intent of 9.9630 (1) (a) (1) and (2) <br />requires that land developed through the PUD process offer protection for the portion of the site above <br />901 feet. <br />The Hearings Official and the City planning department also erroneously claim that the applicant meets <br />many of the purposes of 9.9603 (1) (a) (2) by preserving land on the eastern slope of the proposed Capital <br />Hill PUD. However, all but a small 1100-square-foot sliver of the preserved land is below 901 feet. The <br />applicant cannot use land below 901 feet to meet code requirements for land above 901feet. The applicant <br />fails to meet any of the seven purposes outlined in 9.9630 (a) (2) above 901feet. Therefore, the applicant <br />quite simply fails to meet 9.9630 (1) (a). <br />The Response Committee insists that the applicant meet the higher standards established by the overlay <br />zone. The flexibility afforded the applicant to propose a development according to the PUD process also <br />entails conforming to all relevant codes and refinement plan policies. The applicant failed to do so. The <br />section of the South Hills Study stipulated in EC 9.9630 (3) (g) stipulates: <br />“That planned unit development review shall be based on recognition of both public and private <br />interest. In areas of significant conflict … primacy shall be given to the public interest in any <br />Ћ <br /> <br />