Eugene Hearing Official <br />August 21, 2024 <br />Page 3 <br /> <br />The applicant elected the Clear and Objective Track to be ensured exiting the local process with <br />an approval. The major fly in the soup, however, is a legal question – Whether, with the state <br />Middle Housing mandate in place, the City may use its /PD overlay zone to make a major part of <br />this site off limits to any development at all? This raises the legal question – What is the <br />relationship between the state Middle Housing Statute and the city /PD overlay zone – more <br />accurately all of its overlay zones which, in one way or another, limit what the R-1 base zones <br />say is allowed? The applicant has briefed this relationship – in its narrative, in its hearing letter, <br />in its first open record submittal, and most extensively in its second open record submittal, where <br />we put the issue through the required PGE review. The City has not briefed the matter at all; it <br />has simply said it may apply its overlay zone. <br /> <br />The Hearing Official’s analysis will be the most objective done at the City level. When this <br />matter gets to the Planning Commission that body, in all likelihood, will take the position of the <br />City Attorney, as the Commission does not have its own legal counsel. <br /> <br />In a separate filing submitted with this argument the Applicant has suggested a set of final <br />conditions, starting with the final set of conditions recommended by the Staff as Attachment C to <br />the city’s second open record submittal. <br /> <br />In the balance of this letter, we hit the high points of issues raised on all the standards. In most <br />instances, of course, staff suggests a finding of compliance. <br /> <br />With reference to the standards as raised in the July 10 Staff Report and the application narrative: <br /> <br />EC 9.8325(2): Density standards <br /> <br />The Staff Report finds compliance with respect to Lots 1-38; applicant concurs. <br /> <br />EC 9.8325(3): Areas NOT on the acknowledged Goal 5 inventory. <br /> <br />Staff Report finds the Tree Preservation and Removal Standards do not apply due to the status of <br />the site on the Goal 5 inventory, including the /WR stream corridor and the Scenic Sites <br />inventory; Applicant concurs. <br /> <br />Mr. Helikson’s first open record submittal suggests the site is not on or should not be on the <br />Scenic Sites inventory. Staff showed in their first open record submittal that it is on the <br />inventory. Mr. Helikson cannot run a collateral attack on the inventory now. More importantly, <br />it is ambiguous whether, under the code language, the whole site or just some part of it needs to <br />be on the inventory to exempt the whole site from the applying the tree standards now. <br />Therefore, the standard may not be applied at all. ORS 197.307(4). See applicant’s second open <br />record submittal discussion point 4. <br /> <br />EC 9.8325(4) Safe and Adequate Transportation Systems. <br />