Marick v. City of Lake Oswego

Where a city approves a Residential Infill Design (RID) and a building official later determines that a portion of the nonconforming home built prior to the current zoning requirements is unsafe and requires reconstruction, LUBA will hold that the project, even if amounting a completely new structure, still satisfies the requirements of a local ordinance which permits “reconstruction of a damaged nonconforming structure and exempts that reconstruction from contrary . . . provisions to the extent that the damaged portions of the structure failed to conform.” Accordingly, LUBA will hold that the project does not require a new or modified RID application.

Petitioner appealed the City’s approval of a Residential Infill Design (RID) for a now completed home. The home was built in 1937 on a lot currently zoned R-7.5. The R-7.5 zone requires five-foot setbacks from side lot lines. The north wall of the nonconforming home was four-inches from the side-yard, and the south wall was about one foot away. The RID was approved as a minor development action. Demolition of the entire dwelling except for the foundation and north and south walls revealed “unexpected site conditions” caused by dry rot, and the walls were deemed unsafe. Intervenor homeowners submitted new building plans to “replace the unsound walls” and footings, and the city planning manager affirmed the plans as maintenance of a non-conforming structure.

Petitioner’s first assignment of error centered around a “whole home” argument that Intervenor built a new nonconforming home “under the guise of maintenance” and restoration. First, Petitioner argued that the City authorized a building plan which increased the degree of nonconformity by authorizing “property easements for all footings projecting onto neighboring properties” and for “all footing and rain drain and storm lines that may be in an adjacent property line due to the walls being on the property line.” LUBA agreed with the City because the final approval proposal located the new sidewalls and footings “entirely within the footprint” of the original structure, “without increasing the side-yard setback nonconformity.”

Second, Petitioner argued that “maintenance,” “restoration,” and “reconstruction” signify some continuation of an original structure and not a complete replacement. Lake Oswego Code (LOC) 50.01.006(4)(a)(1) permits “reconstruction of a damaged nonconforming structure and exempts that reconstruction from contrary LOC provisions to the extent that the damaged portions of the structure failed to conform.” LUBA agreed with the City, holding that if an entire structure or portion of a structure is damaged and unsafe, replacement in its entirety could constitute “restoring” to safe condition.

Third, Petitioner argued that reconstruction of the dwelling must conform to current R-7.5 standards because there was no proof that the north and south sidewalls were damaged entirely or unsafe and Intervenor demolished the nonconforming walls voluntarily. LOC 50.01.006(4)(a)(iv) provides that “[w]hen all or any portion of a nonconforming structure is damaged by an intentional act of the owner, all reconstruction of the structure shall conform to this Code.” Damaged as defined in LOC 50.10.003(2) excludes “dismantling of a building or site feature or portion of a building or site feature in the course of voluntary reconstruction.” LUBA held that the City correctly interpreted the LOC because LOC 50.01.006(4)(a)(i) permits code-exempt reconstruction of a nonconforming structure, and here dry rot and age were the cause of the north and south wall damage. The first assignment of error is denied.

In their second assignment of error, Petitioner argued that notice and opportunity for a hearing should have been given regarding the full reconstruction of the north and south walls because the reconstruction of the walls should have been categorized as a modification of a RID or a new RID, and therefore required a discretionary minor development permit. Intervenor argued the replacement of the north and south walls were integrated as “maintenance” and “restoration” as part of a nonconforming structure and processed as modifications of the building permit, not the RID decision. LUBA agreed that the City’s approval was exempt from the LOC because LOC 50.01.006(4)(a)(i) provides that reconstruction of a damaged nonconforming structure is “exempt from the provisions of this Code to the extent that the damaged portions of the structure failed to conform.” Additionally, the LOC specifies that the Code is to be interpreted broadly and not to “prevent the strengthening or restoring to a safe condition of any structure, or portion thereof, or site feature declared unsafe by any official.” LOC 50.01.006(2)(b). The second assignment of error is denied. The City’s decisions are affirmed.