Kamps-Hughes v. City of Eugene

For purposes of ORS 197.312(5), the requirement that an accessory dwelling unit be residential depends neither on the identity of the residents nor their legal estate with respect to the dwelling, nor does the requirement that an accessory dwelling unit be “used in connection with” a single-family dwelling mean that the use of the former must be incidental or subordinate to that of the latter.

The subject property is zoned Low-Density Residential (R-1) and developed with an existing single-family dwelling. Petitioner filed a request for zone verification to develop a second single-family dwelling on the subject property. Under ORS 197.312(5), the city must allow at least one accessory dwelling unit for each detached single-family dwelling in areas within the urban growth boundary that are so zoned, subject to reasonable local siting and design regulations. Accessory dwelling units are defined as interior, attached or detached residential structures “used in connection with” or as an “accessory” to a single-family dwelling. Because petitioner’s application did not specify how the second dwelling would be used in connection with or as an accessory to the existing dwelling, other than being on the same lot, the city determined that it is not a permitted use in the R-1 zone. This appeal followed.

Petitioner argues that the second dwelling would be accessory to the existing dwelling because it would have a smaller footprint, less square footage, and fewer bedrooms than the existing dwelling. Resorting to dictionary definitions, LUBA concludes that, because the second dwelling would not “supplement, aid, or contribute to” the use of the existing dwelling or be “secondary or subordinate” thereto in any way other than size, the second dwelling would not be accessory to the existing dwelling. 

Petitioner also argues that the second dwelling would be used in connection with the existing dwelling because the occupants of both dwellings share the same lot. The city responds that, because there is no physical contact between the two dwellings, and because both dwellings would be used as residential rentals, the second dwelling would not be used in connection with the existing dwelling. LUBA agrees with the city that the term “used in connection with” must have some limiting effect. However, given that the legislative purpose of ORS 197.312(5) is to increase available housing, LUBA concludes that that threshold is very low. Thus, for purposes of ORS 197.312(5), residential use depends neither on the identity of the residents nor their legal estate with respect to the dwellings, nor does the term “used in connection with” include any requirement that the use of the second dwelling be incidental or subordinate to that of the existing dwelling. Because the city misconstrued ORS 197.312(5), and because petitioner’s proposed second dwelling would in fact be used in connection with the existing dwelling, the assignment of error is sustained and the city’s decision is REMANDED.