Eugene Hearing Official <br />August 14, 2024 <br />Page 8 <br /> <br />zoned for residential use that allow for the development of detached single-family <br />dwellings.” <br /> <br />The same operative language is in the implementing rule, OAR 660-046-0205(2): <br /> <br />“A Large City must allow for the development of Triplexes, Quadplexes, <br />Townhouses, and Cottage Clusters, including those created through additions to <br />or conversions of existing detached single-family dwellings, in areas zoned for <br />residential use that allow for the development of detached single-family <br />dwellings.” <br /> <br />The explicit language of the Act and the Rule targets “areas zoned for residential use that allow <br />for the development of detached single-family dwellings.” The focus is not lots or parcels within <br />areas so zoned. It is the areas themselves. <br /> <br />That plain mandate to allow Middle Housing in areas so zoned is subject to a short list of <br />exceptions in the statute. Subsection (4) of the Act lists applicability exceptions. They are: <br /> <br />“(4) This section does not apply to: <br />(a) Cities with a population of 1,000 or fewer; <br />(b) Lands not within an urban growth boundary; <br />(c) Lands that are not incorporated and also lack sufficient urban services, <br />as defined in ORS 195.065; <br />(d) Lands that are not zoned for residential use, including lands zoned <br />primarily for commercial, industrial, agricultural or public uses; or <br />(e) Lands that are not incorporated and are zoned under an interim zoning <br />designation that maintains the land’s potential for planned urban <br />development.” <br /> <br />This list is, both textually and contextually, exclusive. It is unlike the tiering statute at <br />ORS 197.298, which, as the Court of Appeals has observed, “specifically provides that its <br />requirements are in addition to the urbanization requirements of Goal 14.” 1000 Friends <br />v. LCDC (McMinnville), 244 Or App 239, 259 P 3d 1021, 1033 (2011). Courts are “not <br />to insert what has been omitted.” ORS 197.010; City of Klamath Falls v. Env. Quality <br />Comm, 318 Or 532, 543, 870 P2d 825 (1994). <br /> <br />Subsection (5) lists regulatory sideboards, which are also both textually and contextually <br />exclusive. It allows cities to regulate only two aspects of Middle Housing. Cities may regulate <br />siting and design; they may also regulate to comply with acknowledged goal protective <br />measures. <br /> <br />Subsection 2(5) of the Act says: <br /> <br />“(5) Local governments may regulate siting and design of middle housing <br />required to be permitted under this section, provided that the regulations do not,