Public Testimony – Open Record City Staff Memo – July 31, 2024

2 remand are EC 9.8510(6), 9.8515(13) and 9.8520(9), all of which relate to expedited land divisions. The subject applications are not eligible for, and did not pursue, an expedited land division, so the subdivision criteria affected by the remand are not applicable. None of the Tentative PUD criteria were impacted by the remand. The applicant’s attorney, Bill Kloos, submitted additional written testimony on July 12, 2024, requesting processing of the subject applications under the Model Code in response to the July 10th LUBA remand. On July 16, 2024, the Hearings Official asked staff several questions related to the State’s Model Code via email as follows: • Does the City agree that, given that the City’s ordinance has been remanded, the model code is now the applicable criteria? • If this application must be evaluated on the Model Code is the public required to have an opportunity to comment on the now applicable criteria? • Or, is the City’s position that since the application was based on the model code and the applicant asserted its applicability during the hearing, that the public has had sufficient opportunity to raise issues regarding the applicable criteria? In response to the Hearings Official’s first question, as discussed above, the City agrees that, unless LUBA’s order is appealed to the Court of Appeals (which the City considers unlikely), as of August 1, 2024, the City will be required to apply the Model Code to middle housing development applications and to apply ORS 92.031 to applications for middle housing land divisions. However, the subject applications do not specifically propose the development of middle housing. The applicant simply notes that Lots 1-38 could potentially be developed with middle housing at some point in the future, beyond single-unit dwellings on Lots 1-38. Assuming no appeal is filed, if the applicant were to propose the development of middle housing (i.e., apply for building permits) on or after August 1st, the applicable approval criteria would be those in the Model Code and not the City Code. However, those potential middle housing applications are separate, and require a separate process, from the subject Tentative PUD and Subdivision applications. None of the standards in the Model Code apply to the subject applications. Neither the Model Code, nor ORS 92.031 apply to the middle housing lots shown as part of Lot 39 on the applicant’s proposed site plan. ORS 197A.420 (the middle housing statute), OAR 660-046-0105(1) and OAR 660-046-0205(1)-(2) (middle housing rules) and the Model Code all require the City to allow the development of duplexes on “each lot or parcel zoned for residential use that allows for the development of detached single-family dwellings” and to allow for the development of triplexes, fourplexes, cottage clusters and townhouses “in areas zoned for residential use that allow for the development of detached single-family dwellings.” (Emphasis added). Single-unit dwellings are prohibited on Lot 39; therefore, middle housing units are also prohibited on that lot.