Hulme v. City of Eugene

Under EC 9.2751(1)(b), for purposes of calculating net density, areas that are “reserved for the exclusive use of the residents” means areas that residents have the power to exclude nonresidents from using or that nonresidents use only incidentally by invitation (i.e., guests) or for the benefit of the residents (i.e., employees).

Petitioners challenge a city decision approving site review, adjustment review, and a Willamette River Greenway permit for a 94-unit apartment complex. The subject property is 3.59 acres and zoned Medium-Density Residential (R-2). In the R-2 zone, the maximum net density is 28 dwelling units per acre. Under Eugene City Code (EC) 9.2751(1), “net density” includes the number of dwelling units per acre of land that is “in actual residential use and reserved for the exclusive use of the residents,” including common open space and recreation facilities but excluding streets. In calculating the net density, the city included a leasing office, maintenance building, and internal parking circulation areas.

In a prior appeal of the decision, LUBA concluded the leasing office, maintenance building, and internal parking circulation areas were properly included in the net density calculation. On judicial review, the Court of Appeals agreed with LUBA as to the maintenance building and internal parking circulation areas, but agreed with petitioners that the leasing office should not have been included. The court interpreted the phrase “reserved for the exclusive use of the residents” to mean areas that residents have the power to exclude nonresidents from or that nonresidents use only incidentally by invitation (i.e., guests) or for the benefit of the residents (i.e., employees). By contrast, the leasing office would be used by nonresidents for their own benefit, such as to inquire about available units. Consistent with the court’s opinion, the city’s decision is REMANDED.