Macfarlane v. Clackamas County

Under Zoning and Development Ordinance 406.04(D), a “dwelling” consists of a “detached single-family dwelling” and may not be used to connect to houses through a breezeway to comply with zoning limiting to one dwelling on the property.

Macfarlane owns property zoned Timber District which contains two dwellings built in the late 1970s. Since this zone only allows one dwelling per lot, the county issued code violation citations and Macfarlane responded by seeking a determination that the second house was a lawfully established dwelling or that he could connect the two through a breezeway. The county planning director denied Macfarlane’s requests. The hearings officer affirmed the planning director, the board of county commissioners declined review, and Macfarlane appealed to LUBA. Macfarlane first argued that the burden of proof was on the county to prove that the second house was not built before 1975. LUBA disagreed that the burden had shifted, and that the hearings officer’s conclusion that the house was most likely built after 1975 was supported by substantial evidence. Macfarlane next argued that the connection of the two houses by a breezeway would make them one “dwelling” under Zoning and Development Ordinance 406.04(D). LUBA disagreed, finding language in the ordinance limiting the definition of a “dwelling” as a “detached single-family dwelling” and reasoning that Macfarlane’s proposal did not meet that definition. Macfarlane next argued that the doctrine of equitable estoppel should prevent the city from issuing violations for a house that has stood for 35 years. The Board declined to consider the argument under this doctrine, as Macfarlane had failed to address the elements of equitable estoppel and affirmed the county’s decision. AFFIRMED.