Posted by: Patricia Salkin | September 30, 2020

OR Appeals Court Holds Regulations Cited by City Could Not Serve as a Basis to Deny Property Owner’s Request to Construct an Accessory Dwelling Unit

This post was authored by Matthew Loescher, Esq.

Kamps-Hughes owned real property in the Fairmount neighborhood of Eugene, zoned Low Density Residential (R-1), and was accessible only via an alleyway. This case related to Kamps-Hughes’ efforts to obtain verification from the city as to whether he could build a detached accessory dwelling unit (“ADU”) on his property. The city planner issued a zone-verification decision stating that a detached ADU was not permitted on the property because a Eugene Code provision prohibited ADUs on alley-access lots. Kamps-Hughes appealed to the Land Use Board of Appeals (“LUBA”), which agreed with Kamps-Hughes that four of the eleven standards the city planner addressed did not relate to “siting and design” and that their application to Kamps-Hughes’s ADU proposal was therefore inconsistent with ORS 197.312(5)(a).

On appeal, the city did not contest that LUBA’s interpretation was one meaning of “siting”; however, the city contended that LUBA erroneously relied solely on the common meaning of the word and failed to consider that “siting” had “a technical meaning in the land use arena” that must also be considered. Specifically, the city argued that the “technical meaning” of “siting” was “clear from its abundant use through the State’s land use laws,” and the city and amicus curiae League of Oregon Cities (“LOC”) cited various statutes that used the word “siting” to describe the placement of things within a larger area, rather than on an individual lot. The court found LUBA’s construction of ORS 197.312(5) (a) was relatively straightforward and easy to apply, as it required cities and counties to allow the development of at least one ADU per detached single-family dwelling in areas within the UGB zoned for detached single-family dwellings, subject only to reasonable local regulations as to where ADUs may be placed on individual lots and their design. The city’s interpretation of “siting” still gave effect to the allowance ratio, which sets forth that cities and counties must allow the development of at least one ADU per detached single-family dwelling in areas within the UGB zoned for detached single-family dwellings, but that they have broad discretion to decide where ADUs may be placed throughout those areas, as long as the ultimate ratio is one-to-one. The court found that this construction would be impractical to apply, especially with regard to ensuring compliance with the allowance ratio. The court further noted that while a modified version of the city’s proposed construction, in which the court adopted the city’s interpretation of “siting” but still gave effect to the one-to-one allowance ratio, would be consistent with the legislative purpose, its impracticality supported the court’s holding that the legislature did not intend that construction.

The court also upheld LUBA’s determination that reasonable local regulations “relating to siting” meant reasonable local regulations relating to where ADUs were sited on a lot, rather than where they were sited within areas zoned for detached single-family dwellings. As to the minimum lot-size requirement, minimum lot-dimension requirement, alley-access prohibition, and occupancy limits, the court held that those were not regulations relating to siting. Accordingly, the court affirmed LUBA’s construction and application of ORS 197.312(5)(a) to the four ADU development standards at issue.

Hughes v City of Eugene, 305 Or. App. 224 (7/1/2020)

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