7 <br />adopted as a Goal 5 regulations. There are Goal 5 regulations that apply to this site; however, <br />this is not one of them. This regulation is not among the Goal protective regulations that may <br />be applied to limit Middle Housing rights. <br /> <br />The PUD criteria in question are as follows: <br /> <br />EC 9.8325(8): For any PUD located within or partially within the boundaries of the South <br />Hills Study, the following additional approval criteria apply: <br /> <br />(a) No development shall occur on land above an elevation of 901 feet except that either <br />middle housing or one single-unit dwelling may be built on any lot in existence as of <br />August 1, 2001. <br /> <br />The applicant’s written narrative was premised on the Model Code being in effect at the time it was <br />first submitted in September 2023 as part of PDT 23-1 which expired. That written narrative was then <br />resubmitted with the current application without revision. As discussed in the staff report, and earlier <br />in this memo, the Model Code was not in effect when the application was resubmitted. However, <br />assuming LUBA’s remand of Ordinance No. 20705 is not appealed to the Court of Appeals, as of <br />August 1, 2024, the City will be required to apply the Model Code to applications for the development <br />of middle housing. <br /> <br />However, contrary to the applicant’s arguments about wording changes to EC 9.8325(8)(a), <br />subsection (8)(a) of the Tentative PUD criteria at EC 9.8325 Housing/Clear and Objective and the <br />Tentative Subdivision criteria at EC 9.8520 Housing/Clear and Objective were approved as part of City <br />Ordinance 20679 which became effective on January 1, 2023, and will not be affected by the remand <br />of Ordinance No. 20705. As discussed above, the only Tentative Subdivision criteria affected by the <br />remand are EC 9.8510(6), 9.8515(13) and 9.8520(9), all of which relate to expedited land divisions. <br />The subject applications are not eligible for, and did not pursue, an expedited land division, so the <br />subdivision criteria affected by the remand are not applicable. In addition, none of the Tentative PUD <br />criteria were impacted by the remand. All that said, the applicant’s arguments related to the wording <br />in EC 9.8325(8)(a) (and whether it includes reference to middle housing or not) are essentially <br />irrelevant based on the simple fact that Lot 39 was not in existence as of August 1, 2001. <br /> <br />During the previous approval for Braewood Hills Third Addition PUD, Phases 5 & 6 (PDT 18-4), the <br />applicant asserted that this same area of the site was developable because it was part of a larger lot <br />that existed on August 1, 2001, and therefore one single-family dwelling unit should be allowed in the <br />area that is now identified as Lot 39. However, the Hearings Official determined in that application <br />process that the area that is now identified as Lot 39 did not exist as a lot on August 1, 2001. <br />Specifically, the Hearings Official found that the area now identified as Lot 39 (identified as Lot 36 in <br />the previous application) “was not created as a separate lot until the Braewood Hills Third Addition <br />PUD was approved in 2002”. The Hearings Official therefore imposed a condition of approval on that <br />application stating that: “The Final PUD Site Plan shall include a statement that no development may <br />occur on any land above the 900-foot elevation.” (see Attachment D, Hearings Official Decision for <br />PDT 18-4, at page 30).