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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 exclusive use of the residents (such as a common amenity area)." LUBA concluded that <br />2 the leasing office and the maintenance building met that standard. <br />3 On review, petitioners argue that LUBA's construction of EC 9.2751 <br />4 deprives the words "actual" and "exclusive" in paragraph (1)(b) of any meaning. In <br />5 petitioners' view, "actual residential use" means that the only acreage that may be <br />6 included in the net-density calculation is acreage on which a dwelling is built or, <br />7 possibly, acreage otherwise reserved for the exclusive use of development residents. On <br />8 the latter point, petitioners' position has not been entirely consistent, but, at least on <br />9 review, they appear to acknowledge that some nondwelling acreage may be included in <br />10 the calculation, so long as it is reserved for the "exclusive use" of the residents. See EC <br />11 9.2751(1)(b) (providing for inclusion of "common open space or recreation facilities" in <br />12 the net-density calculation). As for exclusivity, petitioners deny that their construction of <br />13 the code would require complete exclusion of the public from the apartment complex-- <br />14 such that residents could not, for example, have guests on the property or have food <br />15 delivered to their apartments--asserting at oral argument that, notwithstanding their strict <br />16 construction of the word "exclusive," guests and service providers would be allowed on <br />17 the property because their use would be attributable to the residents who invited them. <br />18 As with statutory construction, the text of the code provision "is the starting <br />19 point for interpretation and is the best evidence of the [lawmakers'] intent." PGE, 317 Or <br />20 at 610. Asa preliminary matter, we address the relationship between EC 9.2751(1)(b) <br />21 and (1)(c)(1). We fully agree with LUBA that those two provisions must be read together <br />6 <br />
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