<br />Hearings Official Decision (PDT 24-1; ST 24-3) 3 <br />originally Phases 5 and 6 of the 2002 approval.3 That approval expired on June 11, 2024.4 That <br />property is now the subject of the requested 39-lot PUD and subdivision. <br /> <br />C. Description of Request <br /> <br />The applicant seeks PUD and subdivision approval for 39 lots, with development in accordance <br />with R-1 zoning on 38 of those lots.5 While the applicant asserts that its current intent is to <br />develop each of the 38 lots with single dwellings, the applicant also notes that the City is <br />prohibited under the Middle Housing Statute from restricting the applicant’s ability to develop <br />the properties with up to four dwelling units per lot. The applicant does not propose to <br />immediately develop Lot 39, but instead provides a conceptual design for future middle housing <br />development, including four dwelling units on that lot. <br /> <br />D. Preliminary Issue <br /> <br />The Hearing Official’s evaluation of this application must be based exclusively on the Record <br />established for this application, including all evidence submitted in the application itself, before <br />and during the public hearing, both orally and in writing, and during the prescribed Open Record <br />period. As noted above, and as described in detailed at the end of the July 10, 2024 public <br />hearing, following the public hearing the Record was left open for a period of 21 days for the <br />submission of new evidence. Following that period, the Record was open for an additional two <br />weeks for responsive testimony – with the express admonition that no new evidence was <br />permitted during that second open record period. Following that responsive period, as the party <br />with the burden of proof, the applicant was allowed one week for rebuttal argument – again, with <br />no new evidence permitted. <br /> <br />Despite these instructions and limitations, during the second open record period, the applicant <br />amended its application and submitted new evidence into the Record. Because the Record was <br />otherwise closed at that time, the public was provided no opportunity to respond to that new <br />evidence. <br /> <br />The applicant’s attorney prefaced the introduction of new evidence by asserting his “right” to an <br />approval under ORS 197.522. According to the applicant’s attorney, so long as the applicant can <br />submit evidence that can, either outright or through conditions of approval, satisfy all approval <br />criteria – at any point in the process – the applicant is entitled to that approval. In his final <br />rebuttal he reiterates that <br /> <br />“If an application for housing needs to be amended in order to be approvable, the <br /> <br />3 The applicant appealed the hearing official’s approval of the Braewood Hills 3 rd Addition PUD Phases 5 & 6 (PDT <br />18-4) to the Eugene Planning Commission, which issued a Final Order on June 25, 2019, affirming the Hearings <br />Official’s decision with revised conditions of approval. The Planning Commission’s decision was appealed to the <br />Land Use Board of Appeals (LUBA). On November 19, 2019, LUBA issued a final order (2019 -067) affirming the <br />Planning Commission’s decision. <br />4 Under EC 9.7340, the 2018 PUD approval would have expired on June 11, 2021; City Council Ordinance No. <br />20643 extended the approval by three years, to June 11, 2024. <br />5 As further discussed below, in response to the City’s inquiry regarding the apparent lack of access to Lot 38, <br />during the second open record period, the applicant modified the proposal to combine Lots 37 and 38.