Kamps-Hughes v. City of Eugene

ORS 197.312(5) is not limited to only applications for statutory permits. Zone verification decisions must also comply with the statute’s requirement that limitations on accessory dwelling units be “reasonable local regulations relating to siting and design.”

Petitioner appeals a zone verification decision issued by a city planner. Petitioner owns property that is accessed only by an alley. In July 2018, petitioner submitted a zone verification request to the city, requesting a determination whether an 800 square-foot detached accessory dwelling unit (ADU) is a permitted use on his property. The city planner concluded that it was not a permitted use because Eugene Code (EC) 9.2741(2) prohibits ADUs on alley access lots. This appeal followed.

In 2017, the Oregon legislature enacted Senate Bill 1051 (SB 1051), now codified at ORS 197.312(5), which requires certain cities and counties to allow “the development of at least one accessory dwelling unit for each detached single-family dwelling, subject to reasonable local regulations relating to siting and design.” SB 1051 provides that the provisions of ORS 197.312(5) apply to “permit applications for accessory dwelling units submitted for review on or after July 1, 2018.” In his assignment of error, petitioner argues the city improperly failed to consider ORS 197.312(5) in evaluating his zone verification request and that, pursuant to ORS 197.312(5), the city may not prohibit an ADU on his property. The city responds that SB 1051 limits application of ORS 197.312(5) only to applications for a “permit” as defined in ORS 227.160(2) and, since a zone verification decision is not a statutory permit, ORS 197.312(5) does not apply to petitioner’s request. LUBA disagrees with the city. Because SB 1051 does not cross reference or otherwise cite the definition of “permit” in ORS 227.160(2), and because the definition of “permit” in ORS 227.160(2) limits its use “[a]s used in ORS 227.160 to 227.186,” it is not clear that the legislature intended the word “permit” in SB 1051 to be limited to statutory permits. LUBA therefore remands the decision in order for the city to consider whether EC 9.2741(2) is a “reasonable local regulation relating to siting and design.” The assignment of error is sustained and the city’s decision is REMANDED.