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Murphy v. Hutchins

October 19, 1972

MURPHY ET UX, APPELLANTS,
v.
S. A. HUTCHINS & ASSOCIATES CONSTRUCTION CO., RESPONDENT



Appeal from Circuit Court, Douglas County. John C. Warden, Judge.

Edward M. Murphy, Roseburg, argued the cause for appellants. With him on the briefs were Stults, Jayne, Murphy & Anderson, Roseburg.

Donald A. Dole, Roseburg, argued the cause for respondent. With him on the brief were Thomas W. Kolberg, and Long, Neuner, Dole & Caley, Roseburg.

Bryson, Justice. Denecke, Tongue and Howell, Justices. O'Connell, Chief Justice, dissenting. Holman, Justice, joins in this dissent.

Bryson

Plaintiffs filed this declaratory proceeding to determine whether defendant had violated a zoning ordinance of the city of Roseburg by collocating and connecting two single-family dwellings on a residential lot in Roseburg, Oregon. Plaintiffs reside near the defendant's structure and sought an order to remove one of defendant's homes. The trial court dismissed the complaint, finding that defendant's structure was a satisfactory "two family dwelling" within the terms of the ordinance. Plaintiffs appeal, assigning as error the dismissal of their complaint.

It appeared at the hearing that defendant's lot

was restricted by Roseburg Ordinance No. 1185 to single-family and two-family dwellings. The ordinance defined a two-family dwelling as follows:

" Two family dwelling. A two family dwelling is a dwelling for not over two families, and having two kitchens, and within which not more than five persons are lodged for hire at one time." Ordinance 1185 ยง 1.

Defendant submitted its plans to the building inspection and city planning officials of the city of Roseburg prior to any construction. The officials were satisfied that the plans for the proposed structure qualified as a two-family dwelling pursuant to the ordinance and issued the appropriate building permits. There is no contention that defendant proceeded without the necessary permits or that its structure exceeded the permission granted in the permits.

The two houses were secured to one common cement foundation on defendant's lot. Defendant also connected the houses by constructing a double carport approximately eighteen feet wide between the two structures. The floor of the carport was a continuous concrete slab which was tied into the common foundation. A gabled roof covered the entire carport and was tied into each house with large wooden beams. The testimony shows that defendant made other changes, including landscaping and painting, that blended the buildings from a visual standpoint into one structure.

The ordinance, being in derogation of common law rights of the property owner to use his property as he wishes, is strictly construed in favor of the property owner. Lane County v. Heintz Const. Co., 228 Or 152, 364 P2d 627 (1961). A presumption ...


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