Kliewer v. City of Bend

Under Bend Development Code 10.20.050.C.1, when the construction of a new structure on the same property as an existing historic dwelling is proposed, the proposed dwelling must comply with the applicable city code in regard to compatibility with appearance and character.

The city landmarks commission approved an application to construct a second dwelling in the place of a former detached garage on property zoned Medium Density Residential (RM), with an existing one-and-one half story dwelling. The two dwellings would be treated as a duplex, which is an allowed use in the RM zone under the Bend Development Code (BDC). The petitioners appeared at the public hearing in opposition, and appealed the approval to the city council, which declined review. The petitioners appealed to LUBA with five assignments of error.

First, petitioners argue that the commission misconstrued BDC 10.20.050.C.1, and adopted findings that were not supported by substantial evidence by concluding that the proposed dwelling conformed with the appearance and character of the historic district, as is required by the BDC. LUBA found that the commission’s findings were inadequate in addressing BDC 10.20.050.C.1, and sufficient findings would, at a minimum: (1) describe the appearance and character of the historic district, (2) describe the appearance and character of the proposed structure, and (3) explain why the structure is or is not compatible with the historic district as described. On remand, LUBA directed the commission to consider the compatibility requirement of BDC 10.20.050.C.1 in context with BDC 10.20.130.A.1’s design review criteria.

Petitioners’ second assignment of error was that the commission misconstrued BDC 10.20.130.A.1, a design review standard for development within historic districts, specifically by not addressing the relationship of the new dwelling to the “street and open space between buildings, to determine whether the relationship is compatible…with the historic character of the surrounding area.” LUBA determined that remand was necessary because of the lack of adequate findings. The third and fifth assignments of error were denied and the fourth was sustained. REMANDED.