West v. Multnomah County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Municipal Law
  • Date Filed: 09-30-2014
  • Case #: 2014-048
  • Judge(s)/Court Below: Opinion by Holstun
  • Full Text Opinion

In order to be considered to “continue to exist” for purposes of forest template dwelling approval, a dwelling must be in a state of habitability; a dilapidated structure that has been vacant for eighteen years is not sufficient.

In Multnomah county, a “forest template dwelling” consists of construction of a new single-family dwelling authorized on forest land where at least part of 11 other parcels falls within a 160-acre template centered on the tract in question and those other parcels contain at least five other dwellings that existed in 1993 and continue to exist. West applied for approval to build one of these. The hearings officer denied the application, stating that one of the existing structures on an adjacent parcel does not “continue to exist” based on its dilapidated condition. West contended that the determination of the dwelling’s existence did not hinge on its being occupied, but rather that it was a standing structure that was designed for the purpose of being a dwelling. LUBA however agreed with the county that the definition of a dwelling implies that a structure designed as such must be in a state of habitability. They noted that the use of the present tense in the county code’s definition of a dwelling as “providing ‘complete’ living facilities” indicates an intent to include habitability as a condition. The Board additionally agreed with the hearings officer that the use of the 1906 structure could be considered a nonconforming use, but that residential use was discontinued for longer than two years, enough to no longer consider it a “dwelling” for purposes of its “continue[d] exist[ence].” AFFIRMED.