Conte v. City of Eugene

(1-1) On remand from LUBA and the Oregon Court of Appeals, a local government may change their approach to amending local land use regulations without necessitating adoption of specific findings as to their reason for changing course as long as “required considerations were indeed considered.” (1-2) When determining residential density under EC 9.3626(1)(g) “it is permissible to count a detached single-family dwelling and its accessory dwelling as one dwelling” because EC 9.3626(1)(a) to (c) already interprets the word “dwelling” flexibly when pertaining to density ranges in the Eugene-Springfield Metropolitan Area General Plan. (2) The “prevent [ion of] the erosion of the neighborhood’s residential character” in the Westside Neighborhood Plan Land Use Element Policy 1 refers only to those changes “rezoning or redesignating residentially zoned properties therein.” (3) “Complicated does not equate to ambiguous” when considering if local governments “adopt and apply only clear and objective standards, conditions, and procedures regulating the development of housing” as required by ORS 197.307(4).

ORS 197.312(5)(a) provides that “a city with a population greater than 2,500 or a county with a population greater than 15,000 shall allow in areas within the urban growth boundary that are zoned for detached single-family dwellings 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.”

To implement ORS 197.312(5)(a) in the Eugene Code (EC), the city adopted Ordinance 206509. Petitioner appealed the Ordinance.

Petitioner’s first assignment of error was two-part. First, petitioner argued that findings in support of Ordinance 20569 were inadequate, and that a local government may not shift its position midway through a proceeding without explanation; Ordinance 20659 amended EC 9.3625, unlike previously remanded ordinances intended to implement ORS 197.312(5)(a), though it relied on their records as support for its enactment. The city responded that there “[was] a full record and no need for additional findings,” and that “there is no generally applicable requirement that [legislative] decisions be supported by findings, although the decision and record must be sufficient to demonstrate that applicable criteria were applied and ‘required considerations were indeed considered.’” Citizens Against Irresponsible Growth v. Metro, 179 Or App 12, 16 n 6, 38 P3d 956 (2002). LUBA sided with the city, explaining that no case cited by petitioner holds that a local government changing course on how to amend its land use code must adopt findings to that effect. The first subsection of the first assignment of error is denied.

Next, petitioner argued EC 9.3626(1)(g) fails to comply with the Eugene-Springfield Metropolitan Area General Plan (Metro Plan) Residential Density Policy A.9 (Policy A.9) because it allows “more intensive use” in the Jefferson Westside Special Area (S-JW) zone than the Metro Plan if accessory dwellings are considered “dwellings”. LUBA is required to reverse or remand an amendment to a land use regulation where “the regulation is not in compliance with the comprehensive plan.” ORS197.835(7)(a). EC 9.3626(1)(g) provides, with regard to residential density, “accessory dwellings . . . shall not be considered within the calculations of dwellings or bedrooms.” Policy A.9 establishes density ranges for zones based on the number of dwelling units per gross acre, but leaves determinations regarding particular structure types to local plans and zoning ordinances. The city and intervenors responded that the city has interpreted “dwelling” with flexibility when regarding Policy A.9. LUBA agreed, concluding that in determining residential density under EC 9.3626(1)(g), it is permissible to count a detached single-family dwelling and its accessory dwelling as one dwelling. LUBA also noted “dwelling” was interpreted flexibly when the city adopted EC 9.3626(1)(a) to (c). The second subsection of the first assignment of error is denied.

In the second assignment of error, petitioner asserted that Ordinance 20659 does not comply with the Westside Neighborhood Plan Land Use Element Policy 1 (Policy 1), which is to “[p]revent the erosion of the neighborhood’s residential character” because the ordinance would allow “double the density of development and allow significantly larger and more impactful structures in most of the area,” including zone S-JW. Arguing that Ordinance 20659 complies with Policy 1, the city cited Conte v. City of Eugene, 318 Or App 670 (2022) holding that “preventing the erosion of the neighborhood’s residential character” in Policy 1 only refers to “rezoning or redesignating residentially zoned properties therein.” LUBA sided with the city, confirming that Policy 1 is irrelevant to Ordinance 20659 as it neither “rezone[s] or redesignate [s] any property.” The second assignment of error is denied.

In the third assignment of error, petitioner pointed to four portions of the EC amended by Ordinance 20659 and argued that they are not “clear” for purposes of ORS 197.307(4). ORS 197.307(4) requires local governments to “adopt and apply only clear and objective standards, conditions, and procedures regulating the development of housing”. LUBA explained that, even if the city could have simplified their mechanism to implement ORS 197.312(5), “complicated does not equate to ambiguous.” The third assignment of error is denied, and the city’s decision is affirmed.