Posted by: Patricia Salkin | July 21, 2020

OR Appeals Court Interprets “siting” provision in recent State legislation regarding ADUs

This post was authored by Caleb Huegel, JD

  • Under ORS 197.312(5)(a), local governments may subject ADUs to reasonable local regulations relating to siting, design, or both. Such regulations need not relate to both siting and design in order to be permissible.
  • Under ORS 197.312(5)(a), local regulations relate to “siting” if they specify the location of an ADU on an individual lot, but not if they describe the placement of ADUs within a larger area, such as an entire residential zone.

In 2018, petitioner submitted a zone-verification request to determine whether an accessory dwelling unit (ADU) was permitted on its property, which was developed with a single-family dwelling and accessible only via an alleyway. The city concluded an ADU was not permitted on petitioner’s lot due to a Eugene Code (EC) provision prohibiting ADUs on alley-access lots. Petitioner appealed the city’s decision to LUBA, arguing the city failed to apply ORS 197.312(5)(a), which requires cities and counties over a certain size to allow “at least one [ADU] for each detached single-family dwelling, subject to reasonable local regulations relating to siting and design.” LUBA agreed with petitioner and remanded the city’s decision. Later that year, petitioner submitted another zone-verification request which the city again denied, this time concluding petitioner’s proposed ADU did not qualify as an ADU under ORS 197.312(5). Petitioner again appealed the city’s decision to LUBA, which agreed with petitioner that its proposed ADU did qualify under the statute.

On remand, petitioner asked the city to identify EC provisions that it considered applicable to petitioner’s proposed ADU. The city identified 11 standards that effectively precluded petitioner from building an ADU. Petitioner appealed to LUBA once more, arguing 6 of those standards did not relate to “siting and design” and therefore could not be imposed by the city under ORS 197.312(5)(a). LUBA agreed with respect to 4 of the standards, which (1) prohibited ADUs on alley-access lots, (2) required a minimum lot-size for ADUs, (3) required minimum lot-dimensions for ADUs, and (4) imposed occupancy limits for ADUs. While the city argued those standards related to “siting” because they related to “where in each of the city’s residential zones ADUs are allowed based on factors such as traffic, livability, and existing density,” LUBA, relying on the dictionary definition of the word “site,” agreed with petitioner that the standards did not relate to “siting” because they did not “specify the location of an ADU on a site.”

The city appealed LUBA’s decision to the Court of Appeals (COA). The COA first concluded that, while ORS 197.312(5)(a) requires that regulations relate to “siting and design,” it uses the word “and” disjunctively. Thus, local governments may subject ADUs to reasonable local regulations relating to siting, design, or both—that is, ADU regulations need not relate to both siting and design in order to be permissible.

The city argued that, because “siting” has a technical meaning in the land use arena, and because various statutes use the word “siting” to describe the placement of things within a larger area rather than on an individual lot, LUBA erred in relying solely on the dictionary definition. While the COA agreed with the city that “siting” could refer to either concept, and that both possibilities were consistent with the dictionary definition of “site,” the COA concluded the context of “siting” supported LUBA’s interpretation.

First, the COA noted that ORS 197.312(5)(a) requires cities and counties to allow at least one ADU “for each detached single-family dwelling,” which is consistent with an “individual lot” view of siting, and that the city’s interpretation would effectively read this one-to-one allowance ratio out of the statute. And while the city’s interpretation could plausibly allow cities to prohibit ADUs on some single-family lots, so long as the total ratio of ADUs to single-family dwellings in the entire zone remained one-to-one, the COA concluded that interpretation was unlikely because it would be impractical to apply. Although the city argued that more Oregon statutes used “siting” to refer to “siting” within a larger area than used it to refer to limitations on individual lots, the COA found that argument unpersuasive since it did not negate the fact that “siting” could refer to either concept and since it was unsurprising that the legislature would tend to concern itself with overall planning and siting within larger areas. Finally, the COA concluded LUBA’s interpretation was most consistent with the legislature’s purpose of increasing the availability of affordable housing, since the city’s interpretation could allow cities to effectively prohibit ADUs in most areas through minimum lot sizes and the like.

The city also argued that LUBA’s interpretation gave no meaning to the words “reasonable” and “relating to” in the statute, and that the fact that the legislature subsequently amended ORS 197.312(5) to prohibit owner-occupancy and off-street parking requirements for ADUs indicated that it considered such requirements to be “siting” regulations. Because the city incorrectly assumed that all regulations regarding where ADUs are placed on individual lots are necessarily reasonable; because LUBA merely focused on whether the regulations at issue related to siting at all, and not with how directly they must relate to it; and because the fact that the legislature wanted to prohibit owner-occupancy and off-street parking requirements quickly does not necessarily mean that it considered them to be “siting” regulations, the COA rejected each of these arguments. Because LUBA did not err in its interpretation of ORS 197.312(5)(a), and because the city conceded that, if LUBA were correct, none of the 4 standards at issue related to “siting,” LUBA’s decision was AFFIRMED.

Kamps-Hughes v. City of Eugene, 305 Or App 224 (2020)


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