Moore v. City of Eugene

“A land use regulation is defined by Measure 49 to include a “provision of a city comprehensive plan, zoning ordinance or land decision ordinance that restricts the residential use of private real property zoned for residential use.” ORS 195.300(14)(c).

Moore filed a petition for a writ of review of the City of Eugene's (the City) decision to restrict Moore's desired use of residential property. Moore intends to build a residence over double the permitted size. Moore assigned error to the trial court’s statutory construction analysis. Moore argued that the restrictions imposed by the City are unlawful and that the terms in Measure 49 apply only to retroactive claims. The City contended that Moore's claims fail because the challenged ordinance must be land use regulation, which requires the restriction of Moore's private residential property. “A land use regulation is defined by Measure 49 to include a “provision of a city comprehensive plan, zoning ordinance or land decision ordinance that restricts the residential use of private real property zoned for residential use.” ORS 195.300(14)(c). The terms “restrict” and “use” are not defined, rather, these are terms of art. The Court analyzed the text of the statute and determined that it does not regulate the dwelling size standard, therefore, Moore's use of her property is not restricted. In order to restrict residential use, a land use regulation adopted after an owner took over a property must limit their preexisting right to use the property for a residential purpose, not alter the sizing standards. Affirmed.