OR Appeals Court Upholds City’s Decision to Apply the Dwelling Size Standard to Petitioner’s Development Request

This post was authored by Matthew Loescher, Esq.

In 2018, Petitioner Moore desired to apply to construct a 1200 square foot residence on her property, and therefore sought a waiver of, or compensation for, the application of Eugene City Code 9.2751(18)(a)3 to her desired use of the property. This code limited the square footage of a residence she could construct on the property to 10% of the total lot area. As applied, a residence on the property would be limited to 462 square feet. The City Council denied the claim, and the trial court affirmed this decision.

On appeal, petitioner argued that to trigger a prospective claim, a land use regulation need not “prohibit” all residential use of residentially zoned private property. The court noted that the word “prohibit” only appeared in three of the exemptions to a prospective claim found in ORS 195.305(3). This was significant, as it was implausible to infer that the voters meant to authorize a prospective claim under ORS 195.305(1) and ORS 195.310(1)(c) where a land use regulation restricted the residential use of private property in the sense for which petitioner advocated, but not where the regulation actually prohibited residential use of the property. Accordingly, the court determined that the structure of the statutory scheme reflected that “restrict” in ORS 195.300(14)(c), ORS 195.305(1), and ORS 195.310(1)(c) included the prohibition of a claimant’s residential use of his or her property.

The court next found that the term “restrict,” as used in ORS 195.300(14) (c), ORS 195.305(1), and ORS 195.310 (1)(c) modified the noun “use,” and should therefore be interpreted as “part of a phrase in harmony with the meaning of use.” As such, the court determined, to “restrict” residential use within the meaning of those provisions, a land use regulation adopted after an owner acquired her property must limit the owner’s preexisting legal right to use her residentially zoned private property for a residential purpose, and not merely alter applicable siting and developments standards. The trial court’s holding, that the dwelling size standard in respondent’s ordinance did not restrict the residential use of petitioner’s property, was therefore affirmed.

Moore v City of Eugene, 2020 WL 7770886 (OR App. 12/30/2020)