Eugene Hearing Official <br />August 14, 2024 <br />Page 4 <br /> <br />regarding how the /PD overlay zone standards (in both the General and Clear and Objective <br />tracks) relate to the Missile Housing Statute. Question 5 in that application raises the question <br />now before you: <br /> <br />“In its review of an application for a tentative PUD on R-1 land under the Clear <br />and Objective track standards in EC 9.8325, may the City apply standards that <br />make certain land undevelopable with Middle Housing rights in the future? This <br />question intends to include the standard in EC 9.8325(8)(a) which prohibits any <br />“development” above the 901-foot elevation. That standard on its face invites the <br />City to condition the PUD approval to require any land above the 901-foot <br />elevation to remain open, thus negating Middle Housing rights on that lot. The <br />pending Braewood Hills 3rd Addition PUD (PDT 23-1 and ST 23-3) is an example <br />of this situation. The current proposed PUD Site Plan is enclosed.” <br /> <br />The City has yet to issue a decision on this pending verification application. The City also has <br />thus far avoided explaining its position at several opportunities in this proceeding. <br /> <br />The applicant’s narrative explained why this limitation is prohibited by the Middle Housing <br />Statute. The initial Staff Report at page 27 simply paraphrases the statute and the rule and says <br />they allow the City to apply its code to prohibit all development above 901’. <br /> <br />“Both ORS 197A.420 and OAR Chapter 660, division 46 are clear that the City <br />must allow the development of middle housing where the development of single- <br />unit detached housing is allowed. EC 9.8325(8)(a) prohibits ALL development, <br />including both single-detached dwellings and middle housing, on land above an <br />elevation of 901 feet, unless the lot was in existence on August 1, 2001.said that <br />the code language applies. <br /> <br />“* * * * <br />“Staff notes that an applicant always has the option to apply for a Tentative PUD <br />under the discretionary approval criteria at EC 9.8320, which do not contain the <br />same prohibition on development above 901 feet.” (Emphasis original) <br /> <br />The applicant’s July 10 hearing letter at 4-5 explained again how the Middle Housing Statute <br />applies directly to prohibit application of the 901’ prohibition. That submittal also included a <br />copy of the zone verification application and a LUBA brief summarizing the legislative history <br />of the statute. The July 10 letter summarized what the City may not do with its /PD overlay <br />standards to defeat the statute: <br /> <br />“Apparently, it is the city’s position that it can start with an R-1 base zone (which <br />plainly allows single family dwellings, and therefore full Middle Housing rights) <br />and then add an overlay zone like /PD that restricts or negates Middle Housing <br />rights by prohibiting any housing in some areas of the R-1 zone. It seems that the <br />City is looking at the phrase in the statute – “in areas zoned for residential use that <br />allow for the development of detached single-family dwellings” – and reading