The Hearings Official determined that the area now identified as Lot 39 "was not <br />created as a separate lot until the Braewood Hills Third Addition PUD was approved in <br />2002" and accordingly imposed a condition prohibiting any development on that lot. <br />The Planning Commission affirmed that condition. <br />Regarding the current Tentative PUD application (PDT 24-1) the Hearings Official found that <br />because almost all of proposed Lot 39 is above 901 feet3 and because the land comprising <br />proposed Lot 39 did not exist as a separate lot on August 1, 2001, no development can occur on <br />the lot. <br />As for the applicant's argument 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. The Hearings Official also found that state law <br />does not require the City to allow middle housing on residentially zoned property that expressly <br />prohibits residential development. The Hearings Official determined that state law requires that <br />the City allow middle housing only in areas that otherwise allow the development of a single -unit <br />dwelling and, since no development of any kind (single -unit dwelling or otherwise), is permitted <br />on Lot 39 under the Clear and Objective PUD criteria, state law does not require the City to allow <br />the development of middle housing on Lot 39. <br />Summary of Applicant's Argument <br />The applicant argues that the Hearings Official incorrectly analyzed the relationship between the <br />middle housing statute and the 901-foot prohibition in the code by concluding it is appropriate to <br />use overlay zones to limit middle housing rights. <br />Planning Commission's Determination <br />The Planning Commission affirms the Hearings Official's finding that the approval criterion at EC <br />9.8325(8) prohibits all development above 901 feet on Lot 39 because it did not exist as a separate <br />lot on August 1, 2001. <br />The Planning Commission rejects the applicant's argument that the middle housing statute and <br />implementing rules (ORS 197A.420, OAR Chapter 660, division 46, and the Large Cities Middle <br />Housing Model Code) provide that because the subject property is zoned for residential <br />development, the applicant is unequivocally entitled to develop Lot 39 with middle housing. The <br />Planning Commission further rejects the applicant's argument that the middle housing statute and <br />implementing rules somehow require the City to consider only "base zones" and prohibit the City <br />from applying its PUD overlay requirements. <br />The Planning Commission agrees with and adopts the Hearings Official's conclusion on pages 43- <br />44 of her decision that: <br />' Based on the applicant's site plan Sheet L2.0 included with supplemental materials dated May 10, 2024, a variable <br />width strip of land approximately 1 to 20 feet wide located on Lot 39 is shown under 901-feet in elevation, where it <br />abuts proposed Lots 33, 37 and 38. <br />Final Order: Braewood Hills 3rd Addition (PDT 24-1 and ST 24-3) Page 29 <br />