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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 and do not create "independent approval criteria." At the same time, we disagree with <br />2 any suggestion that (1)(c)(1) is the controlling provision, as far as how to calculate net <br />3 density, such that any use that does not fall under an express exclusion in (1)(c)(1) <br />4 qualifies for inclusion under (1)(b). Such a view of EC 9.2751 would effectively read <br />5 paragraph (1)(b) out of the code. <br />6 In construing statutes and, by analogy, code provisions, "where there are <br />7 several provisions or particulars, such construction should be adopted as will give effect <br />8 to all." ORS 174.010. Here, if the code drafters had intended "net density" as used in EC <br />9 9.2751(1)(b) to mean all land uses except those listed in subparagraph (1)(c)(1)--as <br />10 respondent developer argues on review--they would not have needed to include <br />11 paragraph (1)(b) at all. But they did include both provisions, and, as LUBA recognizes, <br />12 paragraph (1)(b) provides the applicable definition of "net density." By contrast, <br />13 subparagraph (1)(c)(1) is one of several provisions that clarify finer points of the <br />14 calculation. See, e.g., EC 9.2751(1)(c)(2)-(3) (regarding when to round up or down to the <br />15 nearest whole number when calculating net density). We view subparagraph (1)(c)(1) as <br />16 clarifying a particular point of significance to the code drafters, not as superseding the <br />17 general definition of "net density" in paragraph (1)(b). That is, paragraph (1)(b) explains <br />18 how to calculate net density generally, while subparagraph (1)(c)(1) identifies specific <br />19 uses that can never satisfy the definition in paragraph (1)(b). Accordingly, we reject any <br />20 construction of EC 9.2751(1) that treats it as providing for the inclusion of all permitted <br />21 land uses in the net-density calculation except those expressly excluded under EC <br />7 <br />
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