LOC News
Court Provides Guidance on Reasonable Local Siting Regulation for Construction of ADUs
On April 24, the Oregon Court of Appeals, in Kamps-Hughes v. Eugene, issued an opinion which provides cities guidance on what constitutes a reasonable local siting regulation for the construction of accessory dwelling units (ADU) under ORS 197.312(5).
ORS 197.312(5), in general, requires cities with a population greater than 2,500 to allow, in areas within an 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.” An ADU is defined to include an “interior, attached or detached residential structure that is used in connection with or that is accessory to a single-family dwelling.” The statute specifically states that a local regulation that requires the primary or accessory structure to be owner-occupied, or that additional off-street parking be required, are not reasonable regulations.
In Kamps-Hughes, a property owner applied to the city of Eugene for an ADU, which the city denied for failing to comply with a number of local siting standards. The relevant siting standards at issue in this case include:
- A prohibition on new ADU’s on lots accessed only by an alleyway;
- A minimum lot-size requirement of 7,500 square feet;
- A minimum lot-dimension requirement of 45 feet by 45 feet; and
- Occupancy limits for the ADU.
When the property owner was denied an ADU permit, he filed an appeal with the Oregon Land Use Board of Appeals (LUBA). LUBA found the four above siting standards to violate ORS 197.312(5). In its decision, LUBA concluded that regulations “relating to siting” are only those that regulate an ADU’s “location or placement on the property.” Because the four regulations did not regulate the location or placement of the ADU on the physical property in question, the city could not apply the regulations to an application for construction of an ADU. The city of Eugene appealed LUBA’s decision to the Court of Appeals; the LOC participated as an amicus in support of Eugene.
The Court of Appeals upheld the LUBA decision. At both LUBA and before the Court of Appeals, the city argued that “siting” regulations are those that determine where in a residential zone an ADU may be “sited.” The court rejected that interpretation, based largely on the requirement in the statute that “at least one” ADU is allowed for “each” single-family dwelling. According to the court, the city’s interpretation would result in a significant number of single-family dwellings being unable to site an ADU, which is inconsistent with this one-to-one ratio.
Additionally, the court noted that the “considerations underlying the four Eugene code standards at issue in this appeal – minimizing density and thereby limiting traffic, increasing livability, and preserving neighborhood character – are essentially policy arguments against ADU development in existing residential neighborhoods. The city’s proposed construction of ORS 197.312(5)(a) would effectively disregard the Legislature’s own statewide policy determination in the guise of ‘siting’ regulations.”
Cities are encouraged to review this decision with their city attorney or land use attorney. In addition to the decision’s impact on how cities site ADUs, the case has the potential to impact how cities regulate the development of middle housing under HB 2001, enacted during the 2019 legislative session. Generally speaking, HB 2001 requires two things:
- Cities not located in a metropolitan service district with a population of more than 10,000 and less than 25,000 shall allow the development of a duplex on each lot or parcel zoned for residential use that allows for the development of detached single-family dwelling; and
- Cities with a population of 25,000 or more and each county or city within a metropolitan service district shall allow: (a) the development of duplexes, triplexes, quadplexes, cottage clusters and townhomes in areas zoned for residential use that allow for the development of detached single-family dwellings; and (b) a duplex on each lot or parcel zoned for residential use that allows for the development of detached single-family dwellings.
The same terms at issue in the Kamps-Hughes decision, “reasonable local regulations related to siting and design,” are also included in HB 2001.
The LOC’s amicus brief in support of the city of Eugene was written by Chris Crean, who is Of Counsel with the Portland law firm of Beery Elsner & Hammond. LOC wishes to sincerely thank Chris, as well as Beery Elsner & Hammond, for the exemplary brief that was filed on behalf of the LOC and their ongoing support of Oregon cities.
Contact: Patty Mulvihill, General Counsel – pmulvihill@orcities.org
Last Updated 7/17/20