Eugene Hearing Official <br />August 14, 2024 <br />Page 5 <br /> <br />that phase to mean the base zone plus any overlay zone restrictions it wants to <br />apply. That interpretation, the applicant believes, misinterprets the relevant phrase <br />in the statute. The phrase refers to the base zone, not the base zone as the City <br />elects to cripple it in overlay zones. It is flat contrary to the purpose of the statute <br />because it would allow the city to impose overlay zones in its discretion to defeat <br />the statute anywhere that it wants.” <br /> <br />The city’s first open record submittal of July 31 did not attempt to brief this legal question. It <br />simply stated, in conclusory terms at page 3, that the statute, rule and model code do not operate <br />to override the prohibition in the /PD standards against any development above 901’. <br /> <br />“Regardless of the applicability of the Model Code and ORS 92.031 to middle <br />housing development and middle housing land use applications for land within <br />the City, because EC 9.8325(8)(a) prohibits development of single-unit housing <br />on Lot 39, neither ORS 197A.420, ORS 92.031, Division 46 of OAR Chapter <br />660, nor the Model Code operate to override the Eugene Code to allow middle <br />housing or middle housing land divisions on Lot 39.” <br /> <br />This is conclusionary. What is missing from the city’s first post-hearing submittal, and has <br />continued to be missing since the December 28 zone verification application, is any analysis or <br />explanation beyond the above ipse dixit, supporting the city’s bare assertion that its residential <br />overlay zone standards are consistent with the Middle Housing Statute. <br /> <br />The applicant’s first open record submittal of July 31, at pages 4-6, provided a summary briefing <br />of why the Middle Housing Statute applies directly to prohibit the city’s proposed conditioning <br />to implement the 901’development prohibition. It explained that the statute applies directly; it <br />creates full Middle Housing rights in areas zoned for single family detached dwellings; that <br />includes the R-1 zone; that right is limited only by exceptions listed in the statute; the 901’ <br />prohibition is not among the list of exceptions as it is not a Goal 5 regulation and does not fit in <br />any other exception; the legislative history supports reading the statute as proposed here – a <br />broad mandate to create Middle Housing rights limited only by the listed exceptions. <br /> <br />The city’s last opportunity to explain its interpretation that its code is consistent with the statute <br />will be in its second open record submittal on August 14. If the City provides that explanation, it <br />will be its first effort since the zone verification application requested that application on <br />December 28, 2023. <br /> <br />The issue in question is a matter of state law on which neither the city attorney, staff, the <br />hearings official, nor anyone else at the city is entitled to deference. Yet here again, the Hearing <br />Official is being asked to help prolong the city’s history of hostility to state housing mandates <br />affecting city density minimums in areas zoned for single-family residential use. The applicant <br />respectfully urges counsel and staff to recognize that their initial position on this issue is <br />untenable and change their recommendations accordingly. <br /> <br />If they reject that opportunity, then they will have abandoned the Hearings Official on this issue,