Appeal Materials 2024-09-17 - Laserfiche WebLink

Eugene Planning Commission September 17, 2024 Page 9 “No development shall occur on land above an elevation of 901 feet except that either middle housing or one single-unit dwelling may be built on any lot in existence as of August 1, 2001. The HO decision does not suggest specific condition language, but the staff recommended language is: “No development of middle housing, single-unit dwellings, or any other development, including but not limited to land divisions, may occur on any land above 901-feet in elevation.” The HO has incorrectly analyzed the relationship between the Middle Housing Statute and the 901-foot prohibition in the code. The HO approached this issue the same as the staff – simply concluding it is OK for the City to use overlay zones to limit Middle Housing rights created by the statute. The Middle Housing Statute always applies directly. The HO concedes that the operative phrase in the statute allows Middle Housing “in areas zoned for residential use that allow for the development of detached single-family dwellings.” Decision 43 para 6. That right is subject to a short list of exceptions that allow the City to apply its own limiting regulations. Here the entire site has R-1 base zoning that allows single family detached dwellings. It is just the overlay zone that imposes the elevation prohibition. The question is whether the statute allows the City to use its overlay zone to make some parts of the R-1 area off limits to Middle Housing? The City does not argue that its /PD overlay limitation above 901 is within any of the exceptions stated in the statute that allow the City to apply its own regulations to limit Middle Housing. The /PD regulations are plainly not within the statutory exceptions. The City simply assumes that it can limit Middle Housing as it pleases with the /PD overlay. This project can be approved with or without the 901-foot limitation being applied. If the City applies the prohibition the applicant can have that reviewed by LUBA. LUBA will apply the standard methodology for determining the relationship between the statute and this overlay zone, without any deference to the city position. The City must apply the same interpretive methodology here; that has not been done by either the staff or the HO. The only correct approach is for the City to examine the text, context and legislative history of the Middle Housing Statute to determine the intent of the legislature in adopting the Middle Housing Statute. The methodology for doing that is stated in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), and State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009). The City has not followed that methodology yet. The applicant provided a full PGE/Gaines analysis in the first discussion point at pages 3-14 of its Second Post Hearing Open Record Letter (August 14) to answer the following question: “May the City use standards in its overlay zones that stick to R-1 zoned property in the South Hills to negate or limit Middle Housing rights created by the statute? More specifically in this instance, may the City apply the standard in its /PD