Hulme v. City of Eugene

Under EC 9.2751(1)(b), areas which are neither in residential use nor reserved for the exclusive use of the residents in a development may still be included in a net density calculation if they are used exclusively to support the residential use of the property.

Petitioners and cross-petitioners challenge a city decision approving with conditions site review, adjustment review, and a Willamette River Greenway permit for a 94-unit apartment complex. The subject property is 3.59-acres, zoned Medium-Residential (R-2), and separated from the Willamette River by a public pedestrian and bike path running parallel to the river.

Under the Eugene City Code (EC), the maximum net density in the R-2 zone is 28 units per acre. EC 9.2751(1)(b) defines “net density” as the number of dwelling units in actual residential use and reserved for the exclusive use of the residents in a development. EC 9.0500 defines “street” as an improved way that is created to provide ingress or egress for vehicular traffic to one or more lots. EC 9.2751(1)(c)(1) provides that streets and other public facilities are excluded from net density calculations, but parking drives are not. Petitioners argue the city improperly construed applicable law by including a parking area, leasing office, and maintenance building in the net density calculation. LUBA agrees with the city that, although the parking area was granted an adjustment to allow internal traffic circulation from multiple access points, that did not transform it from a parking drive to a “street” within the meaning of EC 9.2751. In addition, while neither the leasing office nor maintenance building are in residential use or reserved for the exclusive use of the residents, they are used exclusively to support the residential use of the property and may therefore be included in the net density calculation. The first assignment of error is denied.

EC 9.8815 implements Statewide Planning Goal 15 (Willamette River Greenway). It provides that a Willamette River Greenway permit may be granted only if a development provides open space between the activity and the river, as well as public access along the river, “[t]o the greatest possible degree.” In addition, EC 9.8815 requires that proposed developments conform with applicable Willamette Greenway policies as set forth in the Metro Plan. Metro Plan Policy D.5 limits new development along the river to “uses that are compatible.” In the second assignment of error, petitioners argue that (1) the city’s findings are insufficient to support the conclusion that the development will maximize open space between the activity and the river, (2) the city misconstrued applicable law in deciding that the site need not provide direct public access to the river, and (3) the city's findings were not based on substantial evidence since the applicant did not demonstrate that the proposed 35-foot buildings were compatible.

Because the city’s decision demonstrates that it balanced factors such as the shape of the property, the number of units allowed, and the configuration of the development in determining that the provision of open space was sufficient, because Goal 15 requires adequate public access along the river and not to the river from the subject property, and because Policy D.5 limits new development along the river to compatible uses (i.e., multi-family residential) as opposed to building configurations, LUBA agrees with the city’s interpretation of law and concludes that its findings are sufficient to support the decision. The second assignment of error is therefore denied and the city’s decision is AFFIRMED.