Recht v. City of Depoe Bay

1) Where a local government makes findings based on the assertions of an applicant’s representatives in disregard of evidence to the contrary, and where those findings are based on a record which lacks outcome determinative information, LUBA will hold that they are inadequate. 2) Where local zoning code requires that a variance must be “necessary for the preservation of a property right of the applicant substantially the same as owners of other property in the same zone of vicinity possess,” LUBA will hold that the noncompliance of an existing development alone is not substantial evidence of the existence of a corresponding property right in others to develop in the same manner.

Intervenor sought to develop six townhomes on the subject 0.7-acre property zoned Retail Commercial (C-1) and requested variances to multiple C-1 development standards. Petitioner appealed the approval of Intervenor’s variance application. 

Depoe Bay Zoning Ordinance (DBZO) 8.010 allows a variance to a zoning ordinance “where it can be shown that, owing to special and unusual circumstances related to a specific piece of property, strict application of the ordinance would cause an undue or unnecessary hardship.” DBZO 8.020(4) requires that “the hardship is not self-imposed and the variance requested is the minimum variance which would alleviate the hardship.”

In the first and sixth subassignments of their first assignment of error, Petitioner argued that the city council made inadequate findings not supported by substantial evidence when approving Intervenor’s variances to ordinances related to sidewalks and pedestrian amenities on the grounds that the necessary removal of a rock outcropping would be cost prohibitive and create significant disturbance to adjacent properties. Substantial evidence is evidence a reasonable person would rely upon to reach a decision. Dodd v. Hood River County, 317 Or 172, 179 (1993). Agreeing with Petitioner, LUBA reasoned that because the city council relied solely on assertions by Intervenor’s representatives to support its findings as to the existence of a hardship and did so despite evidence which indicated that development of other properties in the vicinity included outcropping removal, those findings were not supported by substantial evidence. LUBA further reasoned that because there was no evidence in the record of the cost of removal, nor any reference to whether the allegedly prohibitive cost could be remedied by partial removal of the outcropping, findings as to the minimal nature of the variance were conclusory and inadequate. Accordingly, LUBA sustained Petitioner’s first and sixth subassignments of error.

DBZO 8.020(2) provides that a variance must be “necessary for the preservation of a property right of the applicant substantially the same as owners of other property in the same zone of vicinity possess.”

In the fourth subassignment of their first assignment of error, Petitioners argued the city council made inadequate findings as to the necessity of the variance to preserve a property right. “If the city believes that its current zoning ordinances impede the accomplishment of goals deemed important to its citizens' welfare, the proper ‘remedy lies in amending the zoning ordinance not in granting a variance.’” Lovell v. Planning Commission of Independence, 37 Or App 3, 7 (1978). Agreeing with Petitioner, LUBA reasoned that the inconsistency of an existing development, a nearby motel, with current design standards was not substantial evidence of Intervenor’s corresponding right to develop in the same manner. More, LUBA reasoned that if the city council desired to alter the development standards, the appropriate course of action was amendment of the zoning code. Accordingly, LUBA sustained Petitioner’s fourth subassignment of error.

For reasons set forth in the resolution of the first assignment of error, LUBA likewise sustained Petitioner’s third assignment of error and sustained their second assignment of error, in part. Remanded.