Agenda Packet 9-24-18 Meeting - Laserfiche WebLink

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3 3. The City Attorney provided legal advice to the Council that, while not clear, could be misinterpreted in this (and other) M49 decisions resulting in the City Council violating the "Equal Protection" provisions of the U.S. and Oregon Constitutions. The following exchange took place between Councilor Zelenka and the City Attorney: Councilor Zelenka: “A tiny home. And, City Attorney, what … would this set a precedence for other cases associated with Measure 49 and/or ADUs or alley access lots?" City Attorney: "Ya know, consistency is always good, but it doesn’t bind (emphasis in speech) you in any way. What your decision would do this evening is … if you decided … if you chose to grant the Measure 49 waiver or deny the Measure 49 waiver, it won’t mean that the next Measure 49 decision [sic] that came in would somehow be bound to that. You’re allowed to change your approach and factual situations are also different and look at the individual specs[?]. So, if you’re asking if a decision in this case, one way or another, to grant or deny, would somehow mean that all your future decisions would be bound by that, no. It wouldn’t be." Councilor Zelenka: "In this case it seems to be almost be … the original idea behind the 2014 amendment was to treat these smaller lots like an ADU and have those kind of restrictions make sense. But this seems to be an unintended consequence of that language; and that this lot is not a tiny lot and it could easily accommodate a 1,200 square foot home as the, that the person wants to build. And, it does kind of cry out in my mind for an exemption, er, exception from this rule." The City Attorney's advice was not perfectly clear. The City Attorney ("CA") is correct that approving this M49 claim would not require the Council to approve all future M49 claims, nor would denying this M49 claim require the Council to deny all future M49 claims. As the CA correctly states, the Council would base future decisions on the specific facts of each case. However, the CA should make certain that the Council understands that their interpretation and application of the law must remain consistent in order to meet the constitutional requirements for "equal protection under the law." (I won't provide a length legal discussion; but as the CA certainly is aware, the "Equal Protection" constitutional rights apply to a local government's decisions regarding development.) In this case, if the Council were to adopt the staff's interpretation that the M49 statutes consider a restriction on a dwelling's physical characteristics" to be a restriction on use, then the Council would be bound to apply that same interpretation to all M9 claims. In fact, the Wilson's would likely have a legal basis to reinstate their prior M49 claim by asserting the City Council had violated their equal protection rights in denying their claim based on an inconsistent and prejudicial application of the law. (Believe me, Bill Kloos will be out drumming up lots of M49 claims if the Council makes this mistake.) The City Attorney needs to clarify her advice to the City Council to avoid this issue. This isn't an abstract potential problem, as demonstrated by Councilor Zelenka's comments immediately following the CA's advice. Understandably, just hearing the CA's advice, Councilor Zelenka posited that Moore's dilemma was an "unintended consequence of that language," and (in his opinion) Moore's lot "could easily accommodate a 1,200 square foot home." Based on these points, Councilor Zelenka suggested to his colleagues that "it does kind of cry out in my mind for an exemption, er, exception from this rule." The exact same intuitive (and potentially reasonable) argument could have been made for the Wilson's M49 claim or any future claim by other property owners. But following that approach would make each decision an arbitrary, "gut" decision, which would inevitably run afoul of the equal protection clause for M49 claims that were denied. September 24, 2018, Meeting - Item 3