<br /> <br /> 24 <br /> <br />criterion at EC 9.8325(8), which states: <br /> <br />(8) For any PUD located within or partially within the boundaries of the South Hills Study, <br />the following additional approval criteria apply: <br />(a) No development shall occur on land above an elevation of 901 feet except that <br />either middle housing or one single-unit dwelling may be built on any lot in <br />existence as of August 1, 2001. <br /> <br />The subject property is residentially zoned, and subject to the /PD Planned Unit Development <br />overlay zone. As the applicant has applied under the Clear and Objective approval criteria at EC <br />9.8325, the applicant is subject to the limitations on development imposed by EC 9.8325(8)(a), <br />which provides that no development is allowed on any property above 901 feet. The Hearings <br />Official determined the applicant did not argue, and there is no evidence in the record, that Lot 39 <br />was in existence on August 1, 2001. In footnote 27 (page 42), the Hearings Official states: <br /> <br />During the applicant’s 2018 PUD application for the subject property, the applicant asserted <br />that this area of the site was part of a larger lot that existed on August 1, 2001. The Hearings <br />Official determined that the area now identified as Lot 39 “was not created as a separate lot <br />until the Braewood Hills Third Addition PUD was approved in 2002” and accordingly imposed <br />a condition prohibiting any development on that lot. The Planning Commission affirmed that <br />condition. <br /> <br />This footnote references a decision for PDT 18-4 Braewood Hills 3rd Addition Phases 5 and 6, to <br />create a similar 36-lot residential subdivision on the subject property. That Hearings Official’s <br />decision to approve the application was appealed to the Eugene Planning Commission, which issued <br />a Final Order on June 25, 2019, affirming the Hearings Official’s decision with revised conditions of <br />approval. The Planning Commission’s decision was appealed to the Land Use Board of Appeals <br />(LUBA), which issued a Final Order (2019-067) affirming the Planning Commission’s decision. The <br />2018 tentative PUD approval expired on June 11, 2024. <br /> <br />Regarding the current PUD application (PDT 24-1) the Hearings Official found that since almost all of <br />proposed Lot 39 is above 901 feet 2 and because the land comprising proposed Lot 39 did not exist as <br />a separate lot on August 1, 2001, no development can occur on the lot. <br /> <br />As for the applicant’s insistence that state law requires middle housing to be allowed above 901 <br />feet, the Hearings Official determined that the state law does not require the City to consider only <br />base zones or ignore its /PD overlay requirements when determining whether the property is an <br />area where residential development is allowed. Nor does it suggest that the City must otherwise <br />allow middle housing on residentially zoned property that expressly prohibits residential <br />development. The Hearings Official determined that state law expressly requires middle housing <br /> <br />2 Based on the applicant’s site plan Sheet L2.0 included with supplemental materials dated May 10, 2024, a <br />variable width strip of land approximately 1 to 20 feet wide located on Lot 39 is shown under 901-feet in elevation, <br />where it abuts proposed Lots 33, 37 and 38. <br /> <br />Planning Commission Agenda Page 26 of 159