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Petitioners Opening Brief
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Last modified
12/27/2019 4:05:00 PM
Creation date
12/26/2019 2:38:06 PM
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Template:
PDD_Planning_Development
File Type
WG
File Year
18
File Sequence Number
3
Application Name
Lombard Apartments
Document Type
Appeal Docs
Document_Date
4/17/2019
External View
Yes
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10 <br />1 "Petitioners argue that EC 9.2751(1)(b) provides two `criteria': (1) <br />z actual residential use, and (2) exclusive use by residents of the development. <br />3 Petitioners argue that a leasing office and maintenance building are not <br />4 planned for actual residential use or reserved for exclusive use of the <br />5 residents of the apartment complex and, thus, those areas should be excluded <br />6 from the net density calculation. Petitioners point out that neither the leasing <br />7 office or the maintenance building are dwellings. Petitioners argue, and <br />s Lombard does not dispute, that a nonresident may use the leasing office to <br />9 inquire and apply to lease an apartment and the maintenance building is also <br />10 not reserved for the exclusive use of the residents. <br />11 <br />12 The planning commission reasoned that EC 9.2751(1)(c) provides a <br />13 specific manner to calculate net density and noted that, unlike subsection <br />14 (1)(b), subsection (1)(c) `excludes any references to resident-only <br />15 exclusivity.' Rec[] 26. The planning commission reasoned that the leasing <br />16 office and maintenance building support the residential use and will serve <br />17 apartment complex residents and `employees carrying out functions directly <br />18 related to maintenance and operations of the residential use.' Rec[] 26. The <br />19 planning commission observed that those areas are `[i]n no way * * * public <br />20 facilities for the purpose of calculating density.' Id. <br />21 <br />zz We disagree with petitioners that EC 9.2751(1)(b) contains <br />23 independent approval criteria. In Oakleigh-McClure Neighbors v. City of <br />24 Eugene, 70 Or LUBA 132, 140 (2014), rev'd and rem 'd on other grounds, <br />25 269 Or App 176, 344 P3d 503 (2015), the opponents challenged the city's <br />26 net density calculation where the city included in the acreage calculation <br />27 areas encumbered by easements for sewer and water lines. The opponents <br />zs argued that those easements should not be counted as part of the residential <br />29 use because they are `other pubic facilities' and not `reserved for the <br />30 exclusive use of the residents in the development.' Id. We affirmed the <br />31 city's determination that those areas need not be excluded from the density <br />32 calculation because the sewer and water lines are not `public facilities' <br />33 contemplated in EC 9.2751(l)(c). Id. at 142. We agreed with the city's <br />34 interpretation that EC 9.2751(1)(b) must be read together and applied in <br />35 harmony with EC 9.2751(1)(c). Id. We concluded that even though the <br />36 areas of land that included the easements were not in actual residential use <br />37 (such as a dwelling) or reserved for the exclusive use of the residents [of] the <br />38 development (such as a common amenity area), those areas could be <br />39 included in the net density calculation. Id. <br />40 <br />
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