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WG 18-3
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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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13 <br />1 a. The leasing office and maintenance shed must be <br />z removed from the net density calculation because neither <br />3 is for the actual or exclusive residential use. <br />4 <br />5 The City first found that "net density" is calculated based solely on EC <br />6 9.2751(l)(c): "the Planning Commission notes that EC 9.2751(1)(c)(1) provides <br />7 the applicable instrument for calculating density and excludes any reference to <br />s resident-only exclusivity." ER-31. While EC 9.2751(l)(c)(1) is a necessary <br />9 component of the "net density" calculation, EC 9.2751(1)(b) must be factored into <br />1o the "net density" calculation also because the EC expressly defines "net density" as <br />11 "the number of dwelling units per acre of land in actual residential use and <br />12 reserved for the exclusive use of the residents in the development, such as common <br />13 open space or recreation facilities." ER-29. (emphasis added). In other words, <br />14 only if EC 9.275 1 (1)(c)(1) and EC 9.2751(1)(b) are satisfied can should the area be <br />15 included in the net density calculation. By looking only at EC 9.2751(l)(c), the <br />16 Planning Commission has only included half of the calculation. See ORS 174.010 <br />17 ("In the construction of a statute, the office of the judge is simply to ascertain and <br />18 declare what is, in terms or in substance, contained therein, not to insert what has <br />19 been omitted, or to omit what has been inserted; and where there are several <br />zo provisions or particulars such construction is, if possible, to be adopted as will give <br />21 effect to all."). If EC 9.2751(1)(b) is not included, then the express terms of the <br />22 EC have been overlooked, and that is exactly what the City did here when it found <br />
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