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Court of Appeals Decision
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Last modified
12/27/2019 4:01:21 PM
Creation date
12/26/2019 2:48:45 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 Decision
Document_Date
8/14/2019
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Yes
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I nonresidents use only incidentally by invitation of the residents (such as guests) or for the <br />2 benefit of the residents (such as employees of the property manager). <br />3 With that construction in mind, we return to the leasing office at issue here. <br />4 We conclude that the leasing office is not acreage "in actual residential use and reserved <br />5 for the exclusive use of the residents in the development," EC 9.275 1 (1)(b), and that <br />6 LUBA therefore erred in affirming its inclusion in the net-density calculation. The <br />7 acreage may be in "actual residential use," in that a leasing office is fairly characterized <br />8 as a use of, relating to, or connected with residence or residences. But it is not "reserved <br />9 for the exclusive use of the residents." On the limited record that exists, the leasing <br />10 office will be used by some combination of residents and nonresidents. Moreover, the <br />11 nonresidents' use will be for their own benefit--such as to inquire about available <br />12 apartments--not at the residents' invitation or for the residents' benefit.6 The leasing <br />13 office should not have been included in the net-density calculation. <br />14 We reach a different result as to the maintenance building. The <br />15 maintenance building is in "residential use" in that it is a use of, relating to, or connected <br />16 with residence or residences. To analogize, if a person had a tool shed in their back yard, <br />6 Respondent developer argues that "[w]ithout new leases there would be a dearth of <br />residents in the complex, and eventually, over time, none at all." That argument seems to <br />assume that an on-site leasing office is the only way to rent apartments. Regardless, the <br />issue is not whether a leasing office is a permitted use on the property (it apparently is) <br />but only whether its acreage qualifies for inclusion in the net-density calculation under <br />EC 9.2751(1)(b) and (1)(c)(1). We are unpersuaded that a particular use having any <br />arguable benefit to residents qualifies it for inclusion in the net-density calculation. <br />Streets and alleys provide obvious benefits to residents, yet they are excluded. <br />12 <br />
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