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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
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Yes
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18 <br />1 development that are neither exclusively or actually for residential uses is a <br />z "correct" reading of the local provision. <br />3 The second problem is that EC 9.2751(1)(b) does not limit itself to solely <br />4 public facilities, as concluded by the City and LUBA. Indeed, EC 9.2751(1)(b) <br />5 requires that areas included in the net density calculation be solely and actually for <br />6 residential uses. EC 9.275l(1)(c)(1) includes various public facilities but EC <br />7 9.2751(1)(b) does not, and those provisions must be read together. LUBA found <br />8 that the City's decision applies the two provisions in "harmony," pursuant to <br />9 Oakleigh-McClure Neighbors, 70 Or LUBA at 140 (2014). There, opponents <br />1o argued that areas of the development encumbered by easements for subsurface <br />11 sewer and water lines should be excluded from the net density calculation. To the <br />12 contrary, however, the interpretation does not harmonize the two provisions but <br />13 rather eliminates EC 9.2751(1)(b) because no effect is given to the terms <br />14 "exclusive" and "actual." The surface of the areas encumbered by the subsurface <br />15 sewer and water lines can still be used for exclusive and actual residential uses, <br />16 including a common open area, as provided by EC 9.2751(1)(b), but the same is <br />17 not true of a leasing office and a maintenance shed. Because EC 9.2751(1)(b)'s <br />18 "exclusive" and "actual" language has been lost in the analysis, LUBA's decision <br />19 affirming the City's interpretation is unlawful in substance, and must be reversed, <br />zo as contrary to the plain meaning of the terms at issue. Indeed, if EC 9.2751(1)(b) <br />
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