3 <br />EC 9.8325(8)(a) prohibits all development (including single-unit dwellings, middle housing, and all <br />land divisions) above 901 feet, except for lots in existence as of August 1, 2001. Lot 39 is located <br />almost entirely above 901 feet and did not exist on August 1, 20011; therefore, because the applicant <br />has chosen to proceed under the Clear and Objective Tentative PUD criteria, all development is <br />prohibited on that lot. Similarly, ORS 92.031 only allows middle housing land divisions on lots or <br />parcels that can be developed with middle housing. Because EC 9.8325(8)(a) prohibits all <br />development, including both middle housing and land divisions, above 900 feet, ORS 92.031 does not <br />override the Eugene Code to allow middle housing land divisions on Lot 39. <br /> <br />Regardless of the applicability of the Model Code and ORS 9.2031 to middle housing development <br />and middle housing land use applications for land within the City, because EC 9.8325(8)(a) prohibits <br />development of single-unit housing on Lot 39, neither ORS 197A.420, ORS 92.031, Division 46 of OAR <br />Chapter 660, nor the Model Code operate to override the Eugene Code to allow middle housing or <br />middle housing land divisions on Lot 39. <br /> <br />In response to the Hearings Official’s second and third questions about whether the public must be <br />provided an additional opportunity to comment on the applications in light of the remand of <br />Ordinance No. 20705, the City does not believe that an additional opportunity to comment is <br />required. <br /> <br />First, as explained in detail above, the Model Code does not apply directly to this application because <br />the applicant is not proposing the development of any middle housing units as part of these Tentative <br />PUD and Tentative Subdivision applications. Second, the applicant’s application narrative, <br />presentation at the public hearing and communication to the Hearings Official during the initial open <br />record period all argue that the Model Code does apply to the Tentative PUD application. Interested <br />parties have had the chance to respond to those arguments and have taken that opportunity. For <br />example, comments have already raised the issue of the potential impacts related to future middle <br />housing on the proposed lots. In addition, interested parties will have the opportunity to continue to <br />address the issue of applicability of the Model Code to these applications through the second open <br />record period, so additional open record time is necessary. That said, if the applicant wants to <br />request an additional extension of the 120-day decision deadline in order to allow additional time for <br />testimony, the City does not object. <br /> <br />Revised Public Works Referral Comments <br />Based on further review and of the proposed project and in light of the extended open record, Public <br />Works has revised their referral comments (see Attachment B) which include revisions to several key <br />areas of the comments and corresponding recommended conditions of approval. It should be noted <br />that multiple revisions were made to the referral comments that are not discussed below and they do <br />not require any changes to the proposal or proposed conditions of approval. What follows is a <br />summary of the key substantive revisions from the initial Public Works findings, revisions that require <br />additional information from the applicant or otherwise require a change to proposed conditions of 1 Please see staff’s statement below under the heading Goal 5 Status and Middle Housing Development on Lot 39 for a more detailed explanation of why the area identified as Lot 39 did not exist as a lot or parcel on August 1, 2001.