Argued and Submitted January 5, 2015.
Land Use Board of Appeals. 2014048.
Charles Swindells argued the cause and filed the brief for petitioners.
Jed Tomkins argued the cause and filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[269 Or.App. 519] EGAN, J.
In this land use case, petitioners seek review of a Land Use Board of Appeals (LUBA) order that affirmed Multnomah County's (the county) decision to deny their application for a new " template dwelling" on their property. To qualify for a permitted template dwelling, petitioners had to show, among other things, that within a 160-acre square centered on their property, five dwellings existed as of 1993 and continue to exist. The dispute in this case is whether the structure that petitioners rely on for the fifth dwelling--a dilapidated house built in 1906 that has been vacant for some time--qualifies as a " dwelling" under the county's code provision. Both the county and LUBA concluded that it did not. We review LUBA's order to determine if it is " unlawful in substance," ORS 197.850(9)(a), and, because we agree that the 1906 structure is not a dwelling that continues to exist, we affirm.
Petitioners' property is located in the West Hills Rural Plan Area of Multnomah County, is zoned Commercial Forest Use 2 (CFU-2), and is capable of producing more than 85 cubic feet per acre of wood fiber annually. As a result, petitioners' property is property on which a " template dwelling" may be permitted, provided it meets the " template test" in the Multnomah County Code (MCC or code) section 33.2240(A)(3)(c). See MCC § 33.2225(B) (listing types of dwellings that may be permitted in a CFU-2 zone). For petitioners' property, the template test requires that, within a 160-acre square centered on the property, at least 11 other lawfully created lots existed as of January 1, 1993, and at least five dwellings lawfully existed
as of January 1, 1993, and continue to exist or have been replaced by lawful replacement dwellings. MCC § 33.2240(A)(3)(c). [269 Or.App. 520] Petitioners undisputedly showed that there were 11 qualifying lots and four qualifying dwellings surrounding their property. However, the county hearings officer found that the fifth structure on which petitioners relied did not qualify as a " dwelling" that " continue[s] to exist" under the code. LUBA's order described that structure (the 1906 structure) as follows:
" There is no dispute that the 1906 structure is in a 'state of significant disrepair.' The hearings officer's description of the 1906 structure is set out below:
" '* * * This 1906 structure is not presently occupied--it has been boarded up. Moreover, the building is not structurally intact--one half of the structure has split from the other, a portion of the roof is covered in plastic and another roof area is severely degraded with missing shingles, the windows are without glass and the siding has holes in it. In addition, other than Portland Maps data offered by the applicant that lists this building as a dwelling with a bathroom, the record contains no other evidence that the building has indoor plumbing, cooking facilities, or sanitation or that it is or has been recently inhabited. Lastly, County Assessment and Taxation records indicate the current value of the 1906 building is less than $2,500 and shows a range of values from $1,000 to $2,410 between the years of 1996 to 2013. These values indicate that the structure was in a similar, deteriorated and vacant condition for an extended period of time. * * *' [269 Or.App. 521] " Our review of photographs in the record of the 1906 structure confirm the hearings officer's conclusion that the 1906 structure is a severely dilapidated, abandoned and boarded-up structure. Those photographs support the hearings officer's finding that the 1906 dwelling has not been occupied as a residence for a number of years. The tax records support a conclusion that the structure has been in a dilapidated condition since 1996, or the last 18 years."
(Record citations omitted; omissions in LUBA's order.) Petitioners did not dispute the hearings officer's description of the 1906 structure. Rather, they argued that it qualifies as a dwelling in that condition under the applicable definitions in the code. LUBA disagreed and affirmed both of the hearings officer's alternative reasons why the 1906 structure was not a dwelling that continues to exist: (1) the code definition of " dwelling unit" requires a dwelling to provide, in the present tense, complete living facilities, which the 1906 ...