9 <br /> <br />Staff is also somewhat confused as to why and how the applicant would introduce this new issue <br />now, given the implications. It appears that the applicant is making the argument about Goal 5 <br />regulations because he believes that ORS 197A.420, the middle housing rules and the Model Code <br />create an entitlement to construct middle housing on any lot or parcel where the base zone allows <br />development of a single-unit dwelling, except if the lot or parcel is subject to regulations adopted <br />pursuant to a Statewide Planning Goal. In the case of the subject site, the applicable Statewide <br />Planning Goal is Goal 5; therefore, the applicant believes if it can show that Lot 39 is not subject to a <br />Goal 5 regulation, the applicant would be entitled to build middle housing on Lot 39, notwithstanding <br />EC 9.8325(8)(a). However, that is simply not true. Applicant’s arguments ignore the plain language of <br />ORS 197A.420, the middle housing rules and the Model Code, which all limit the entitlement to <br />construct middle housing to lots or parcels zoned for residential use that allow for the development <br />of detached single-family dwellings. As explained previously, Lot 39 is zoned for residential use, but <br />because it did not exist on August 1, 2001, no development is allowed on the lot above 901 feet. That <br />prohibition applies to both single-unit dwellings and middle housing. The applicability of Goal 5 <br />regulations to Lot 39 is not dispositive to the question of whether middle housing is allowed on that <br />lot. The dispositive factor is the prohibition on all development in EC 9.8325(8)(a). <br /> <br />Additionally, although staff disagrees with Kloos’ argument, if he is correct and the site, except for the <br />stream corridor, is not a Goal 5 resource, then according to EC 9.8325(3) and EC 9.8520(8) the tree <br />preservation standards at EC 9.6885 would apply to the subject applications. Since the applicant has <br />not submitted any evidence to demonstrate compliance under EC 9.6885, that would be a basis for <br />denial. <br /> <br />Proposed Lot 39 did not exist prior to August 1, 2001, and therefore the area above 901 feet in <br />elevation on Lot 39, which is almost the entire lot, cannot be developed with either middle housing or <br />one single-unit dwelling. None of the applicant’s arguments or evidence appear to change this fact or <br />sway staff’s recommendation. So, to ensure prohibition of development required by the plain