Brannon v. Multnomah County

Under MCC 33.2256(B), no reduction of the required Primary Fire Safety Zone is permitted for a nonconforming adjustment or variance.

Petitioner appeals a county hearing officer’s decision to deny the request for after-the-fact approval of an addition to a single-family dwelling.

The original home, built between 1968 and 1970, was located 18 feet from the southern property line. Though this was a violation of the general 30-foot setback rule that existed at the time and the later-enacted 30-foot Forest Practices Setback and Fire Safety Zone, the county did not pursue enforcement regarding the original house. In 1995, a previous owner built an unpermitted addition, making the home two and one-half inches (.21 feet) from the property line. Petitioner sought after-the-fact-approval for the 1995 addition. Approval was denied, causing this appeal.

On the first assignment of error, LUBA held that the original encroachment may be maintained. The original house created an 18-foot “substandard Primary Fire Safety Zone” which must be maintained to “the extent possible within existing setbacks” under Multnomah County Code 33.2256, Table 1. However, the “existing setback” language does not extend to structures built without required permits. The 1995 addition to the house was located completely within the Fire Safety Zone. It constituted a nonconforming adjustment or variance process under Multnomah County Code 33.2256(B). Therefore, no reduction of the required Primary Fire Safety Zone is permitted for the 1995 addition.

Additionally, LUBA affirmed the hearing officer’s interpretation that the Fire Safety Zone language “to the extent possible” and Forest Practices Setback language “may be maintained” signify that an encroachment to the Forest Practices Setback may be approved, while the same encroachment to Fire Safety Zone may not.

On the second assignment of error, LUBA found that the hearing officer correctly denied petitioner’s assertion that access to 60 x 70-foot easement at the southern end of the property was adequate to satisfy the requirement of a 30-foot Primary Fire Safety Zone. LUBA applied MCC 33.2256(D)(4) which states that Primary Fire Safety Zone requirements “shall be established within the subject tract” which is defined as “one or more contiguous lots of record in the same ownership” MCC 33.2210. Because the easement is not on the subject tract, the easement cannot constitute the Fire Safety Zone. AFFIRMED.