McCollough v. City of Eugene

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Municipal Law
  • Date Filed: 12-21-2016
  • Case #: 2016-058/059/060/061/062/063
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

When there is ambiguity or doubt about compliance with a city code provision, the issue will be remanded for the local government to resolve.

     The petitioners appealed multiple permits approving construction of an apartment complex for ex-convicts and office space for parole and probation officers. The city issued a zoning verification decision finding that the proposed development qualified as Controlled Income and Rent Housing (CIR) under the Eugene Code (EC), which is permitted in the R-2 zone. The city further concluded that the office space would be allowed as an accessory use to the CIR development.

     The petitioners raised five assignments of error. In their third assignment of error petitioners argued that the city erred by not imposing a condition to ensure that the proposed probation office served only residents of the development. LUBA determined that the city was not required to impose a condition of approval. LUBA held that the zone verification decision granted the proposed accessory use only if limited to providing services to residents. If a different type of office use developed than the one that was approved, the city would have authority to limit development to that which was approved in the building permits.

     In their fifth assignment of error petitioners argued that Building 1 did not comply with the building orientation code provisions. EC 9.5500(5)(a) requires that multiple family buildings within 40 feet of a front lot line have their primary orientation toward the street. Building 1’s entrances are oriented toward the courtyard. EC 9.5500(5)(b) requires that main entrances of ground floor units within 40 feet of a front lot line face the street, unless a side orientation is deemed necessary.  LUBA determined that the EC does not define “primary orientation,” and it was unclear how the primary orientation standard of EC 9.5500(5)(a) differed from the building entrance standards in EC 9.5500(5)(b) and (c). LUBA held remand was necessary to determine the relationship between the different EC provisions. REMANDED.