Gu v. City of Bandon

Under BMC 17.92.040(G), the city council must determine whether the conditions and limitations that an applicant has agreed to in its conditional use permit application will “alter the character of the surrounding area in a manner which substantially limits, impairs, or precludes the use of surrounding properties.”

            Petitioner appeals a city council decision that denies his application for a conditional use permit (CUP) to allow his single-family home to be used as a vacation rental dwelling (VRD). Petitioner’s property is zoned Controlled Development 1 (CD-1), a zone which allows single-family dwellings as a use permitted outright and allows VRDs as a conditional use. The city approved petitioner’s zoning clearance and the planning commission approved petitioner’s CUP. The planning commission’s decision was then appealed to the city council where petitioner’s CUP was denied. Petitioner appealed. 

            In petitioner’s first assignment of error, petitioner challenged the adequacy of the city council’s findings that his proposal did not comply with the City of Bandon Municipal Code (BMC) 17.92.040(G). Petitioner argued that the city council’s findings largely rested on the fact that his dwelling is larger than the surrounding dwellings, which is a fact that is not directly relevant under subsection G. Subsection G states that a CUP will be approved if the “proposed use will not alter the character of the surrounding area in a manner which substantially limits, impairs, or precludes the use of the surrounding properties….” The city, in turn, argued that it denied petitioner’s application because its biggest concern is traffic, noise and on-street parking, which will substantially impair the surrounding area. 

LUBA disagreed with the city because it was clear that the dominant concern in the city council’s findings was the size of the dwelling because it went so far to include the garage and porch area of petitioner’s dwelling to make the discrepancy seem even larger, while failing to include those areas of other dwellings in the neighborhood. LUBA further found that the existing residences in the area currently generate a fair amount of on-street parking, which can disrupt traffic flow. LUBA pointed out that it is not apparent how the disputed VRD could have an impact on on-street parking since petitioner is required under the city code to provide five off-street parking spaces. LUBA further noted that the city code places an absolute occupancy limit of ten on VRDs, while petitioner is only seeking approval for up to eight occupants. Therefore, LUBA held that the question the city council needs to address more directly than it has is whether Petitioner’s proposal to use his dwelling as a VRD, with the conditions and limitations Petitioner has agreed to in the application, will alter the character of the surrounding. REMANDED.