Posted by: Patricia Salkin | April 6, 2020

OR Appeals Court Holds City Code Zoning Provision Applied to Previously-Existing Site Review Zoning on Overlay Zoning Map

This post was authored by Matthew Loescher, Esq.

Simons Investment Properties, LLC sought a determination from the city that the /SR Site Review overlay zone did not apply to ten properties located in the Whiteaker neighborhood, or, alternatively, that the /SR overlay should be removed from those properties. The city determined that the /SR overlay applied and denied Simons Investment’s application for a zone change. In this case, the City of Eugene sought review of a Land Use Board of Appeals (“LUBA”) order that reversed the city’s decision. 

The court first found that contrary to LUBA’s reading of the LUCU, not every base zone was reclassified in the table that appeared in EC 9.1045. That table only includes those districts that were given new titles, and the titles that remained the same, even though the zoning is now “zones” instead of “use districts,” were not included in the reclassification table. The fact strongly suggested that the city intended that zones without a title change would continue as previously applied. It further implied that the city was merely updating code language from “use district” to “zone” and “subdistrict” to “overlay zone” for those unchanged titles. Moreover, nothing in the text or context of the LUCU itself indicated an intention of the city that all the zoning was entirely “new” and needed to be reapplied to be effective.

The court next noted that the LUCU contained text that indicated that the purpose of site review in the LUCU was the same as the purpose of the previous site review. This also indicated that the city intended to revise and update the site review zoning as previously applied to property in the city.

As such, the requirement for site review in the Whiteaker Plan, and the application of /SR to the subject properties in the 1994 rezoning order, applied the /SR overlay to the subject properties, under the plain text of EC 9.4410. Accordingly, LUBA’s order was found “unlawful in substance,” and was reversed.

 Simons Investment Properties, LLC v City of Eugene, 303 OR. App. 199 (3/25/2020)


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