Settlemier v. City of Albany, LUBA No. 2020-107

Decision Date27 May 2021
Docket NumberLUBA No. 2020-107
PartiesCAMRON SETTLEMIER, Petitioner, v. CITY OF ALBANY, Respondent.
CourtOregon Land Use Board of Appeals

FINAL OPINION AND ORDER

Appeal from City of Albany.

Camron Settlemier filed the petition for review and reply brief and argued on behalf of himself.

M. Sean Kidd filed the response brief and argued on behalf of respondent.

RYAN, Board Member; RUDD, Board Chair, participated in the decision.

ZAMUDIO, Board Member, did not participate in the decision.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850. Opinion by Ryan.

NATURE OF THE DECISION

Petitioner appeals Ordinance 5949, which amends the Albany Development Code to implement new state legislation.

BACKGROUND

In 2017, the Oregon legislature enacted Senate Bill (SB) 1051 (2017), which amended ORS 197.312 to provide that

"[a] city with a population greater than 2,500 or a county with a population greater than 15,000 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." Or Laws 2017, ch 745, § 6.

That language is codified at ORS 197.312(5)(a). The legislative policy underlying SB 1051 is to increase available housing. Warren v. Washington County, 296 Or App 595, 600, 439 P3d 581, rev den, 365 Or 502 (2019). In 2019, the legislature enacted House Bill (HB) 2001 (2019), which further amended ORS 197.312 to provide that "'[r]easonable local regulations relating to siting and design' does not include owner-occupancy requirements of either the primary or accessory structure or requirements to construct additional off-street parking." Or Laws 2019, ch 639, § 7. That language is codified at ORS 197.312(5)(b)(B).

HB 2001 also requires cities with a population of 25,000 or more to allow the development of

"(a) All middle housing types 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." Or Laws 2019, ch 639, § 2.

That language is codified at ORS 197.758(2).1

ORS 197.646(1) provides:

"A local government shall amend its acknowledged comprehensive plan * * * and land use regulations implementing [the] plan by a self-initiated post-acknowledgment process under ORS 197.610 to 197.625 to comply with a new requirement in land use statutes, statewide land use planning goals or rules implementing the statutes or the goals."

In 2020, the city began proceedings to amend the Albany Development Code (ADC) to implement HB 2001.

As relevant to this appeal, the amendments increase the maximum size of an allowed accessory dwelling unit (ADU) from the lesser of 750 square feet or 50 percent of the square footage of the primary residence to the lesser of 900 square feet or 50 percent of the square footage of the primary residence. Supplemental Record 20. On September 28, 2020, the planning commission held a public hearing on the amendments and, at the conclusion, voted to recommend to the city council that the amendments be adopted. On October 14, 2020, the citycouncil held a public hearing on the amendments, at which petitioner presented written and verbal testimony. At the conclusion of that hearing, the city council voted to adopt the amendments. This appeal followed.

FIRST, SECOND, AND THIRD ASSIGNMENTS OF ERROR

Petitioner's first, second, and third assignments of error contain overlapping arguments, and we address them together.

A. Standard of Review

ORS 197.835(7)(a) requires LUBA to reverse or remand an amendment to a land use regulation that is "not in compliance with the comprehensive plan." The challenged decision is a legislative decision. Although there is no statutory requirement to adopt findings in support of a legislative decision, former ADC 1.630(1) (July 11, 2018) provides that, "[i]n reaching a decision on a legislative matter, the Council shall adopt findings applicable to the relevant policies and criteria in support of the decision."2

B. Former ADC 1.630(1) (July 11, 2018) Requirement for Findings

As noted, petitioner presented written and verbal testimony on the amendments at the October 14, 2020 city council hearing. In all three assignments of error, petitioner argues that the city council erred in failing to adopt findings that respond to their testimony from the October 14, 2020 city council hearing.

The city responds, and we agree, that former ADC 1.630(1) (July 11, 2018) does not require the city to adopt findings that respond to testimony, arguments, or evidence presented to the city council. It merely requires the city to adopt findings in support of the decision that address "relevant policies and criteria." The city council did so, and petitioner does not challenge any of the findings that the city adopted.3 Petitioner points to no other basis for requiring the city to adopt findings that respond to their testimony and evidence. Accordingly, petitioner's argument under all three assignments of error provides no basis for reversal or remand of the decision.

C. First Assignment of Error

In their first assignment of error, petitioner argues that the amendments are not in compliance with the following Albany Comprehensive Plan (ACP) provisions: ACP Goal 5; ACP Goal 5, Policy 3(c); and ACP Goal 5, Implementation Method 8.4 According to petitioner, by allowing larger ADUs insome circumstances, the amendments effectively change the existing single-family residential zoning in the Hackleman and Monteith Historic Districts by allowing multi-family residential uses at a higher density. Petitioner also argues that the increased maximum ADU size changes the character of neighborhoods in a manner that is inconsistent with ADC 1.020(9), ADC 3.010, and ADC 3.020(7).5

The city responds that petitioner has not established that the increased maximum ADU size fails to comply with any of the provisions cited in the petition for review and that the city's allowance of multi-family residential structures in single-family zones is consistent with the requirement in ORS 197.758(2) that the city allow middle housing. The city also responds that, to the extent that petitioner argues that the amendments amend the criteria for new construction in historic districts, petitioner is wrong.

We agree. Petitioner disagrees with the amendments, but they have not developed any cognizable argument that the increased maximum ADU size fails to comply with any provisions of the ACP or ADC.6

D. Second Assignment of Error

In their second assignment of error, petitioner argues that the amendments fail to comply with ACP Goal 10, Policy 16, which is to "[e]ncourage the development of a range of affordable housing in a range of types and appropriate sizes to meet Albany's housing needs. Examples include accessory apartments, manufactured housing, and attached single-family houses." Petitioner argues that allowing larger ADUs effectively allows two houses on one lot and that theamendments will result in the demolition of existing single-family houses and the construction of two expensive houses on the same lot, with one being an ADU.

The city responds, and we agree, that petitioner's argument amounts to a disagreement with the increased maximum ADU size and does not come close to demonstrating that the amendments fail to comply with ACP Goal 10, Policy 16.

The second assignment of error is denied.

E. Third Assignment of Error

In their third assignment of error, petitioner argues that the amendments fail to comply with ACP Goal 12, Policy 5, and ADC 1.020(7) (July 11, 2018), which both relate to transportation, and ADC 1.020(8) (July 11, 2018), which relates to design safety.

ACP Goal 12, Policy 5, is to "[e]ncourage development design that emphasizes safety and does not create unnecessary conflicts." ADC 1.020(7) (July 11, 2018) provides that one of the purposes of the ADC is to "provide for review and approval of the relationship between land uses and traffic circulation in order to minimize congestion, with particular emphasis on not exceeding the planned capacity of residential streets." According to petitioner, allowing larger ADUs is inconsistent with those provisions because, as petitioner testified before the city council, "[a]llowing ADUs up to 900 square feet allows double the population density in developed neighborhoods. Neighborhoods that were never designed for double the traffic and congestion. * * * These streets and the traffic patterns were never designed to support two houses per lot." Record 303.

The city council did not address ACP Goal 12, Policy 5, or ADC 1.020(7) (July 11, 2018) in the findings, and the city responds in its brief that the city council was not required to do so because those provisions are not "relevant policies and criteria" within the meaning of former ADC 1.630(1) (July 11, 2018). In addition, the city points out that HB 2001 provides that a local government is not required to consider whether amendments to its development code to allow middle housing "significantly affect an existing or planned transportation facility." Or Laws 2019, ch 639, § 3. In HB 2001, the legislature has determined that the effect of middle housing on traffic is not a barrier to implementing...

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