Appeal Decision - Final Order - Laserfiche WebLink

Contrary to the applicant's desired reading, the Middle Housing statute does not require the City to consider only base zones or ignore its PUD overlay requirements when determining whether the property is an area where residential development is allowed. Nor does it suggest that the City must otherwise allow middle housing on residentially zoned property that expressly prohibits residential development. Rather, it expressly requires middle housing only in areas that otherwise allow residential development. The applicant is simply incorrect that Lot 39 is "zoned for residential use that allow[s] for residential development." The subject residentially zoned property is subject to the PUD overlay and, in accordance with the clear and objective criteria of EC 9.8325(8)(a), no residential development is allowed on any property above 901 feet. The Planning Commission finds that ORS 197A.420, OAR 660-046-0105, OAR 660-046-0205 and the Large Cities Middle Housing Model Code all require the City to allow duplexes on each lot or parcel "zoned for residential use that allows for the development of detached single-family dwellings," and all other middle housing types in "areas zoned for residential use that allow for the development of detached single-family dwellings." The Planning Commission finds that while the subject property is zoned for residential use, EC 9.8325(8)(a) prohibits all development (including development of detached single-family dwellings) on the portion of Lot 39 above 901 feet in elevation because Lot 39 did not exist as a separate lot on August 1, 2001. Because EC 9.8325(8)(a) prohibits development of detached single-family dwellings on the portion of Lot 39 above 901 feet, the Planning Commission finds that Lot 39 is not an "area ... that allows for the development of detached single-family dwellings," and therefore neither ORS 197A.420, OAR Chapter 660, division 46, nor the Large Cities Middle Housing Model Code require that the development of middle housing be permitted on Lot 39. The Planning Commission therefore imposes the following condition of approval to ensure compliance with EC 9.8325(8)(a): The final PUD plans shall be revised to remove any references to middle housing lots to be created on land above 901-foot elevation. The final PUD plans shall also include a note stating that: "No development of middle housing, single -unit dwellings, or any other development, including but not limited to land divisions, may occur on any land above 901 feet in elevation." The Planning Commission notes that if the applicant or any future owner wishes to develop the portion of the subject property above 901 feet in elevation (with middle housing or otherwise), they could submit a new Tentative PUD application under the track for General/Discretionary approval subject to the applicable standards at that time. Appeal Issue #10: The applicant argues that the Hearings Official erred by not doing a separate review of the subdivision proposal, relying instead on the analysis of the PUD. Final Order: Braewood Hills 3rd Addition (PDT 24-1 and ST 24-3) Page 30