City reaffirms lot adjustment post appeal

At issue is whether allowing a single duplex with two dwelling units to be built would result in an “increase in density” in the low-density zone, which is prohibited by city land use regulations.

In appealing the decision, opponents argued that allowing two dwelling units rather than a single-family dwelling increased density in the zone, density being defined simply as the “number of dwelling units per acre.”

In response to LUBA’s request for more information on the question, city staff retained Angelo Planning Group to conduct a “residential density analysis” to ascertain whether  development of a single duplex on the subject property would result in an increase of density within the zone. That study, presented by Steven Harris, community development director for the city, found that within a 1,000-foot radius of the subject property, development of the duplex would result in a density increase from 1.88 to 1.91 dwelling units per gross acre. In addition, the study found that within the study area, if all lots where duplexes were permitted (corner lots) were developed, and all additional low density lots developed as well, future density would increase to 4.63 dwelling units per gross acre.

Under both scenarios, the resulting density was well within the 0 to 6 dwelling units per acre allowed within the low density zone, Harris argued.

Jonathan Blum, the applicant, said that opponents’ suggestion that only the simple definition of “dwelling units per acre” applied to his application was simplistic. “Does it increase density? Yes. Building anything would increase density of the zone,” he testified before the council. “It’s clear that density should be considered in terms of zone limits.”

Lorene Hunt in turn argued that the city was further defining “density” beyond the “dwelling units per acre” definition appearing in the application documents. “Density is clearly defined, and increasing from one dwelling unit to two is clearly an increase in density,” she said during the public hearing. “Adjustments are clearly prohibited from allowing an increase in density. It’s not allowed, the application should be denied because the criteria were not followed. The provisions mean what is said, without addition or subtraction. The city is trying to insert what has been omitted,” she added, and said that was a violation of Oregon statute.

In questioning, Mayor Richard Mays suggested that the application was an increase in density, but not beyond allowable limits with the ordinance. Hunt responded, “That’s adding to the code. Do you want the code to be what it says, or not?”

Also speaking at the hearing was Jonathan Hunt, who said adding the six dwelling units per acre definition was not a “clear and objective standard. We question this analysis; density is not defined as 3 to 6 dwelling units per acre.”

Following public testimony, councilors Rod Runyon and Russ Brown both said they were comfortable with the city’s interpretation of density in regards to the property in question. Brown said, “I feel a pretty narrow interpretation of our rules has been presented (by opponents).”  Councilor Linda Miller moved to modify the findings of fact to include the city’s explanation of why the project did not increase density in the zone, and the resolution passed 4 to 1, with Councilor Darcy Long-Curtiss voting no.

“I think it does change the density,” Long-Curtiss explained after the meeting had been adjourned. “We made the definition to justify what we did.”