Simons Investment Properties, LLC v. City of Eugene

If a city ordinance repeals the standards of a particular designation, that designation no longer applies in the city, even if the ordinance does not expressly repeal the prior ordinance applying the designation in the first place.

In 1994, the city adopted two ordinances, one to create the Whiteaker Mixed Use District (MU-W Zone), and the other to apply that zone and an existing Site Review Subdistrict (SR Subdistrict) to the subject property. In 2001, the city repealed the entire Eugene Code (EC) and applied new base zones to the city. Today, the subject property is subject to the Whiteaker Area Special Zone (S-W Zone) and the Site Review Overlay (SR Overlay). Petitioners applied for a zone change to remove the SR Overlay from the subject property. The city denied the application and this appeal followed.

In the first assignment of error, petitioners argue the city improperly construed the old and new ECs when it concluded that the SR Overlay applies to the subject property in the first place. LUBA agrees with petitioners that, while the 2001 ordinance did not repeal the 1994 ordinance applying the SR Subdistrict to the subject property, that designation is meaningless because the 2001 ordinance repealed the SR Subdistrict standards. In addition, notwithstanding the facts that (1) the purpose of the SR Subdistrict and the SR Overlay are very similar, (2) language in the new EC indicating that one of its purposes is to require site review for properties zoned MU-W, and (3) city planning staff stated the 2001 ordinance did not change where the subdistricts applied, LUBA concludes that neither the 2001 ordinance nor any subsequent city action applied the SR Overlay to the subject property. The EC does not include any text that describes the SR Overlay zone boundaries and the 2001 ordinance did not contemporaneously adopt an overlay zone map depicting the boundaries. Because the subject property is not subject to the site review requirements of the SR Overlay, petitioners need not apply to remove that overlay from the properties. The first assignment of error is sustained and the city’s decision is REMANDED.