_____________________________________________________________________________________ <br /> <br />Staff Report | Braewood Hills 3rd Addition (PDT 24-1 & ST 24-3) <br />These concurrent Tentative PUD and Subdivision applications are and have been subject to the <br />Eugene Code, including, if applicable, the City’s locally adopted middle housing regulations <br />since they were submitted. The applicant’s arguments about the criteria included in the Large <br />Cities Middle Housing Model Code, and its allowance for regulation and prohibition of middle <br />housing on certain Goal protected lands are simply inapposite. Both ORS 197A.420 and OAR <br />Chapter 660, division 46 are clear that the City must allow the development of middle housing <br />where the development of single-unit detached housing is allowed. EC 9.8325(8)(a) prohibits <br />ALL development, including both single-detached dwellings and middle housing, on land above <br />an elevation of 901 feet, unless the lot was in existence on August 1, 2001. In this case, <br />because the land on the subject site located above 901 feet did not exist as a lot on August 1, <br />2001, neither a single-detached dwelling nor middle housing is allowed on the area of site <br />above 901 feet. Applicant’s proposed Lot 39 does not yet exist, so it clearly did not exist on <br />August 1, 2001. And even under the prior PUD approval for the subject site, the land over 901 <br />feet did not exist as a lot on August 1, 2001. As noted in the Hearings Official’s decision for PDT <br />18-4 Braewood Hills 3rd Addition PUD Phases 5 & 6 (the Tentative PUD approval previously <br />applicable to the subject site), the land above 901 feet “was not created as a separate lot until <br />the Braewood Hills Third Addition PUD was approved in 2002”.4 The Eugene Planning <br />Commission affirmed this Hearings Official’s finding by Final Order issued on June 25, 2019. EC <br />9.8325(8)(a) complies with ORS 197A.420 and OAR Chapter 660, division 46 and applies directly <br />to these applications. The applicant’s attempt to argue otherwise are simply incorrect.5 <br /> <br />Staff notes that an applicant always has the option to apply for a Tentative PUD under the <br />discretionary approval criteria at EC 9.8320, which do not contain the same prohibition on <br />development above 901 feet. <br /> <br />Since almost all of proposed Lot 39 is above 901 feet and the land comprising proposed Lot 39 <br />did not exist as a separate lot on August 1, 2001, the following condition is necessary for <br />compliance with EC 9.8325(8)(a): <br /> <br />20. The final PUD plans shall be revised to remove any references to middle housing lots to <br />be created on land above 901-foot elevation. The final PUD plans shall also include a <br />note stating that: “No development of middle housing, single-unit dwellings, or any <br />other development, including but not limited to land divisions, may occur on any land <br />above 901-feet in elevation.” <br /> <br />Based on the above findings and conditions, this criterion is met. <br /> <br />4 Decision of the Hearings Official – Braewood Hills Third Addition PUD Phases 5 & 6 (PDT 18-4), dated <br />May 15, 2019. <br />5 Staff also notes that the applicant is inconsistent in the way they describe the applicability of Goal 5 <br />regulations to the subject site. Throughout much of the application, the applicant describes the entire <br />site as subject to Goal 5 protections but in the applicant’s discussion of EC 9.8325(8)(a) the applicant <br />attempts to carve out proposed Lot 39 from Goal 5 protections. Although the applicability of Goal 5 <br />regulations is ultimately unnecessary to the analysis of the applications’ compliance with EC <br />9.8325(8)(a), the applicant cannot have it both ways. <br />Page 27 of 87