Agenda Packet 9-24-18 Meeting - Laserfiche WebLink

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{00286855;1 } Public testimony was made that Measure 49 requires an owner to prove that building a dwelling of 462 square feet is infeasible. Valid Measure 49 claims require a regulation to restrict, rather than make infeasible or completely prevent, a residential use of property. The claimant is not required to address whether a 462 square foot dwelling is feasible on the property. In conformity with the language of the statute, the Moore M49 claim shows that EC 9.2751(18)(a)3. restricts residential use of the property to a maximum dwelling size of 462 square feet (down from the more than 2,000 square foot dwelling that would have previously been allowed on the property). Measure 49 claims can be made for restrictions on a claimant’s desired residential use of the property. ORS 195.310(1)(c) states that a person may file a claim if “the person’s desired use of the property is restricted by one or more land use regulations.” Similarly, ORS 195.310(1)(b) allows claims if “the person’s desired use of the property is a residential use.” (See Attachment A) The statute specifically accounts for restrictions on a claimant’s desired use of property. Property owners are not required to show that the regulation makes all residential uses infeasible. Public testimony was made that the City’s response to a prior M49 claim (Wilson) should be applied to the current claim. There are important differences between the claims. In the Wilson claim, the City concluded that the regulation at issue did not restrict the residential use of the property because the claimants had other viable methods to achieve their desired residential use. In the Moore M49 claim, the claimant appears to have no viable method to achieve her desired residential use that was allowed prior to the enactment of EC 9.2751(18)(a)3., which is the construction of a 1,200 square foot home. In addition, the City Manager concluded that the appraisals for the Wilson claim did not conform to the Uniform Standards of Professional Appraisal Practice, as required by Measure 49, and that conclusion contributed to the City Manager’s recommendation to deny the claim. Regarding the legislative history of the code section regulating the size of dwellings on alley access lots, EC 9.2751(18)(a)3. states that for alley access lots, “the total building square footage of a dwelling shall not exceed 10 percent of the total lot area or 800 square feet, whichever is smaller.” Public testimony was made that the word “smaller” is an error and that it should be replaced by the word “greater.” A review of legislative history from the 2014 single family code amendments does not appear to indicate that “greater” was the intended word. The legislative history suggests instead that the drafters intended for dwellings on alley access lots to be equal to or smaller than 800 square feet. An email dated February 16, 2014 indicates that several community members reviewed and supported the revised ordinance containing the language “whichever is smaller” (see Attachment B). The February 16, 2014, email includes a document created by community members that “provides a very concise and precise set of changes for code related to SDUs, development on existing alley access lots and accessory buildings” (see Attachment B). On page September 24, 2018, Meeting - Item 3