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Hulme v. City of Eugene

Court of Appeals of Oregon

August 14, 2019

Julie HULME, Rob Handy, and H.M. Sustaita, Petitioners,
v.
CITY OF EUGENE, Respondent, and HOME BUILDERS ASSOCIATION OF LANE COUNTY; and Lombard Apartments, LLC, Respondents.

          Argued and Submitted May 21, 2019

          Land Use Board of Appeals 2018118

          Charles Woodward, IV, argued the cause for petitioners. Also on the brief was Sean Malone.

          Lauren A. Sommers argued the cause and fled the brief for respondent City of Eugene.

          Michael M. Reeder argued the cause and fled the brief for respondent Lombard Apartments, LLC.

          No appearance for respondent Home Builders Association of Lane County.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: The Land Use Board of Appeals (LUBA) affirmed a final land use decision by the City of Eugene approving, with conditions, a consolidated application to build a 94-unit apartment complex. Petitioners seek judicial review of the resulting final order. In their sole assignment of error, petitioners challenge the city's net-density calculation for the proposed development, asserting that LUBA erred when it affirmed the inclusion of a leasing office, a maintenance building, and two internal parking circulation areas in the calculation.

          [299 Or.App. 77] Under EC 9.2751(1)(b), "net density" is defined as "the number of dwelling units per acre of land in actual residential use and reserved for exclusive use of the residents in the development." EC 9.2751(1)(c)(1) lists specific exclusions from that calculation: "public and private streets and alleys, public parks, and other public facilities." Petitioners argue that the two buildings at issue should have been excluded from the calculation, focusing on the terms "actual" and "exclusive" in EC 9.2751(1)(b). As for the circulation areas, petitioners argue that, because they will allow through-motor vehicle traffic, the circulation areas are not "parking drives" as defined in EC 9.5500(11)(b) but are instead "streets" as defined in EC 9.0500 and, therefore, should have also been excluded from the calculation under EC 9.2751(1)(c)(1). Held: LUBA erred with respect to the leasing office, because it is not reserved for the exclusive use of the residents within the meaning of EC 9.2751(1)(b). LUBA did not err with respect to the maintenance building or the internal parking circulation areas.

         Reversed in part and remanded.

          [299 Or.App. 78] AOYAGI, J.

         Petitioners seek judicial review of a final order of the Land Use Board of Appeals (LUBA). LUBA affirmed the City of Eugene's final land use decision approving, with conditions, a consolidated application for site review, adjustment review, and a Willamette River Greenway permit to construct a 94-unit apartment complex on a vacant lot between River Road and the Willamette River. In their sole assignment of error, petitioners challenge the city's net-density calculation for the proposed development, based on Eugene Code (EC) 9.2751, asserting that LUBA erred when it affirmed the inclusion of a leasing office, a maintenance building, and two internal parking circulation areas in the calculation. As explained below, we conclude that LUBA erred with respect to the leasing office-and therefore reverse in part and remand-but did not err with respect to the maintenance building and the parking areas.

         FACTS

         Both the historical facts (taken from LUBA's order) and the procedural facts are undisputed. We state the basic facts here and will provide more detailed facts, as needed, in connection with the relevant legal analyses.

         The subject property is 3.59 acres and zoned Medium Density Residential (R-2) with one or more overlays. Under the Eugene Code, the maximum net density allowed in the R-2 zone is 28 dwelling units "per acre of land in actual residential use and reserved for the exclusive use of the residents in the development." EC 9.275l(1)(b) (quotation); EC tbl 9.2750 (number of units).

         The proposed development is a 94-unit apartment complex, for which respondent developer applied for site review, adjustment review, and a Willamette River Greenway permit. After a public hearing, a city hearings official approved the application, with conditions. With respect to the number of units, the hearings official determined that the maximum permitted number of units was 94, given the net-density provisions for the zone, based on 3.38 acres of property. In making that calculation, the city "counted the entire 3.59-acre property and excluded only a 0.21-acre area [299 Or.App. 79] to be dedicated for the extension of Lombard Street." As relevant to this review proceeding, the 3.38 acres is planned to include a leasing office, a maintenance building, and two internal parking circulation areas.

         Petitioners appealed to the Eugene Planning Commission, which affirmed the hearings official's decision, with modifications. Petitioners petitioned for review to LUBA, which affirmed the planning commission's decision. Petitioners now seek judicial review. They raise a single assignment of error, in which they challenge the net-density calculation for the proposed development, as they did in the city and LUBA proceedings. Specifically, petitioners argue that, under EC 9.275l(1)(b), LUBA erred in allowing land ...


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