Appeal Materials 2024-09-17 - Laserfiche WebLink

Eugene Hearing Official August 14, 2024 Page 6 leaving her with the responsibility of crafting a decision that will survive review by LUBA and Oregon’s appellate courts. Eugene’s repeated unsuccessful attempts to evade the requirements of Oregon’s 2017 Accessory Dwelling Unit Statute, the precursor of and context for the Middle Housing Statute, document that history. In three successive decisions remanding city zone verification decisions that elevated city code over state law, LUBA and the Court of Appeals repeatedly chastised the City for its position flouting the statute. • In Kamps-Hughes v. City of Eugene (Kamps-Hughes I), 78 Or LUBA 457 (2018), LUBA told the City the obvious – it had to apply the ADU statute directly regardless of its code language. • In Kamps-Hughes v. City of Eugene, 79 Or LUBA 500 (2019) (Kamps-Hughes II), LUBA told the City that the proposed dwelling was, indeed, an ADU in the meaning of the statute, even though the owner, who works out of state, did not intend to immediately reside in either dwelling. LUBA held that the ADU statute overrides the city’s owner- occupancy requirement. • In Kamps-Hughes v. City of Eugene (Kamps-Hughes III), __ Or LUBA __(No. 2019-115, Feb. 26, 2020), aff’d 305 Or App 224 (2020), LUBA remanded again for the same kind of error the City is peddling here. LUBA explained that the statutory mandate in ORS 197.312(5)(2017) that “[a] city with a population greater than 2,500 * * * shall allow in areas 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.” LUBA held that four standards in the code were not related to siting or design and could not be applied. The Court of Appeals affirmed explaining that the city’s interpretation was inconsistent with the legislature’s policy statements and was inconsistent with the legislative intention to allow at least one ADU on each residential lot. The City is headed down the same path here as LUBA and the Court of Appeals rejected three times in Kamps-Hughes. The Kamps-Hughes trilogy is not the only story in Eugene’s sad saga of passive resistance to state housing laws. In the same vein, the City has been reversed when the Hearing Official has denied residential development under ambiguous standards when the statute required it to apply only clear and objective standards. See Walter v. City of Eugene, 73 Or LUBA 356 (2016), aff’d without opinion 281 Or App 461, 383 P3d 1009 (2016). And it has been assessed attorney fees as a result. Walter v. City of Eugene, 74 Or LUBA 671 (2016). The interpretive issue presented must be resolved using Oregon’s well-known PGE/Gaines analysis. That analysis demonstrates that the City may not apply its /PD development prohibition in the R-1 zone to negate the applicant’s entitlement to Middle Housing on Lot 39 in the future. The issue is whether “areas zoned for residential use that allow for the development of detached