Hunt v. City of The Dalles

(1) Under the City of The Dalles LUDO 10.3.080.020(B)(6), the city’s findings must explain why an adjustment will not allow an increase in density “in the RL zone,” not whether it will increase the density “associated with the use of the development site.” (2) Under ORS 197.835(9)(a)(C), a typographical error in a few places in the decision does not amount to reversible error or mean that the decision is not supported by substantial evidence.

Petitioner appeals a city decision approving an adjustment to the minimum lot size standards for property that is 7,475 square feet in size and zoned Low Density Residential (RL). Under the City of the Dalles Land Use Development Ordinance (LUDO) 10.5.010.060, the minimum lot size in the RL zone is 4,500 square feet “per dwelling unit.” Intervenor applied for an adjustment to this standard to 3,737 square feet per dwelling unit to develop the subject property with a duplex. LUDO 10.3.080.020(B)(6) prohibits adjustments that “allow an increase in density in the RL zone.” Because LUDO 10.5.010.020(A)(2)(c) allows duplexes as outright permitted uses in the RL zone, the city found that the adjustment “did not result in an increase in density associated with the proposed use of the development site” and was therefore not prohibited by LUDO 10.3.080.020(B)(6). This appeal followed.

In the first assignment of error, petitioner argues the city’s findings are inadequate to explain its conclusion that LUDO 10.3.080.020(B)(6) does not prohibit the adjustment. Because LUDO 10.3.080.020(B)(6) prohibits adjustments that increase density in the RL zone, and is not expressly concerned with whether an adjustment will increase density on a proposed development site, LUBA agrees with petitioner that the city’s conclusion does not address the relevant language contained in LUDO 10.3.00.020(B)(6). The first assignment of error is therefore sustained.

In the second assignment of error, petitioner argues the city’s decision is not supported by substantial evidence in the whole record because several sections of its decision refer to the subject property as including 7,745 square feet while the evidence in the record conclusively establishes that it includes 7,475 square feet. Because, under ORS 197.835(9)(a)(C), a typographical error in a few places in the decision does not amount to reversible error or mean the decision is not supported by substantial evidence, the second assignment of error is denied and the city’s decision is REMANDED.