Hearings Officer Packet - 07/24/1995
CITY OF TIGARD
OREGON
TIGARD HEARINGS OFFICER
PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on
the appropriate sign-up sheet(s).
Assistive Listening Devices are available for persons with impaired hearing
and should be scheduled for Planning Commission meetings by noon on the
Monday prior to the meeting. Please call 639-4171, Ext. 320 (voice) or
684-2772 (TDD - Telecommunications Devices for the Deaf).
Upon request, the City will also endeavor to arrange for the following
services:
• Qualified sign language interpreters for persons with
speech or hearing impairments; and
• Qualified bilingual interpreters.
Since these services must be scheduled with outside service providers, it is
important to allow as much lead time as possible. Please notify the City of
your need by 5:00 p.m. on the Wednesday preceding the meeting date at
the same phone numbers as listed above.
(OVER FOR MEETING AGENDA ITEM(S)
TIGARD HEARINGS OFFICER - 7/24/95 PAGE 1 OF 2
h:Vogln\patty\agend ho7.24
•
CITY OF TIGARD
HEARINGS OFFICER
JULY 24, 1995 - 7:00 P.M.
AGENDA
1. CALL TO ORDER
2. PUBLIC HEARING
2.1 CONTINUED FROM 6/26/95 PUBLIC HEARING:
•
A request for Conditional Use approval to allow an accessory
dwelling unit within a single-family detached residential unit.
LOCATION: 13398 SW 136th Place (WCTM 2S1 4CA, tax lot 8500).
West of SW Hillshire Drive, east of SW 136th Place and south of
SW Westridge Terrace within the Hillshire Subdivision. ZONE: R-7
(Residential, 7 units per acre). The R-7 zone allows single-family
residential units, duplex residential units, public support
facilities, residential treatment home, farming, manufactured
home, family day care, home occupation, temporary use, and
accessory structures. APPLICABLE REVIEW CRITERIA: Community
Development Code Sections 18.52 and 18.130.
3. OTHER BUSINESS
4. ADJOURNMENT
TIGARD HEARINGS OFFICER - 7/24/95 PAGE 2 OF 2
hA1og1n\patty\agend ho7.24
0 0
BEFORE THE LAND USE HEARINGS OFFICER
FOR THE CITY OF TIGARD, OREGON
Regarding an application for a conditional use permit ) FINAL ORDER
for an accessory dwelling unit in a single family home )
in the R-7 zone at 13398 SW 136th Place ) CUP 95-0003
in the City of Tigard, Oregon ) (Leichty)
I. SUMMARY
The applicant requests approval of a conditional use permit to remodel a portion of
the basement of an existing single family detached dwelling to create a 700-square foot
living unit to be occupied by the mother of the one of the resident-owners of the home.
Two duly noticed public hearings were held to review the application. City staff
recommended conditional approval. The applicant accepted the recommendation without
objections. Owners of a property adjoining the site objected to the conditional use permit.
The hearings officer approves the conditional use permit as provided herein.
H. FINDINGS ABOUT SITE, SURROUNDINGS AND PUBLIC FACILITIES
The hearings officer incorporates by reference the findings about the site and
surroundings in Section H of the City of Tigard Staff Reported dated June 19, 1995 (the
"Staff Report"), and the agency comments in Section IV of the Staff Report.
III. APPLICABLE APPROVAL STANDARDS
The hearings officer incorporates by reference the approval standards in Section III
of the Staff Report.
IV. HEARINGS AND RECORD
1. Hearings Officer Larry Epstein (the "hearings officer") received testimony at the
public hearings about this application on June 26 and July 24, 1995. The testimony is
included herein as Exhibit A (Parties of Record), Exhibit B (Taped Proceedings), and
Exhibit C (Written Testimony). These exhibits are filed at the Tigard City Hall.
2. City planner Will D'Andrea testified for the City. He summarized the Staff
Report. He also introduced a letter dated July 24, 1995 from Kris and Ron Farrimond,
owners and residents of property adjoining the Leichty property. Based on their letter, the
Farrimonds oppose the conditional use permit for the following reasons:
a. The proposed living unit would violate the conditions, covenants and
restrictions ("CC & R's") that apply to lots in the Hillshire subdivision.
b. If this conditional use permit is approved, it will be a precedent, and
anyone else who wants such a living unit will be able to build one, increasing traffic and
other effects.
c. There is not enough parking around the cul de sac that the lots adjoin.
Another living unit will make things worse.
d. There is not enough parking on the Leichty property; a driveway should
not count as a parking space.
Hearings Ofcer Final Order
CUP 95-0003 (Leichty) Page 1
0 0
If the application is approved, the Farrimonds argue the occupants of the living unit
should have to park in the Leichty driveway, and notice of limits on the permitted use of the
living unit should be given to potential purchasers of the property.
3. Mary and Mark Leichty testified as the applicants. They explained what they
propose to do. They accepted the Staff Report without objections or corrections. They
agreed to accept a condition of approval requiring filing of a covenant with the deed to the
property describing the limitations that apply to the second living unit. They disputed some
of the statements in the Farrimonds' letter.
V. EVALUATION OF REQUEST
1. The hearings officer incorporates the findings about compliance with the
Community Development Code and Comprehensive Plan in Section V of the Staff Report.
2. The hearings officer finds the reasons given by the Farrimonds to deny the CUP
are not relevant or are rebutted by substantial evidence in the record as follows:
a. Compliance with private CC & R's is not a standard for approval of a
conditional use permit in the City Code. Based on ORS 227.173(1), approval or denial of
an application can be based only on applicable standards and criteria in the local
development regulations and comprehensive plan. Whether the second living unit in the
home violates the CC & R's is not relevant to the CUP, and the hearings officer expresses
no opinion about the merits of that claim.
b. Approval of the CUP in this case does not create a "precedent" in the
sense that that term is used in a court of law. Each application is unique and is judged on
its own merits. A decision in prior local land use case has no binding effect on subsequent
cases. A second living unit is permitted in a single family zone by conditional use permit,
subject to applicable standards and criteria. Those standards and criteria severely limit the
potential for such units. A second living unit in a single family home can be occupied only
by a family member of the occupant of the home. Therefore the Farrimonds' concern about
the precedential effect of the CUP in this case is misplaced and unjustified. Moreover the
issue is not relevant to the CUP in question, because it is not relevant to an applicable
approval standard or criteria.
c. The standards for a second living unit require the applicant to show that
the property complies with off-street parking standards by having at least two parking
spaces for the principal dwelling unit and an additional parking space for the second living
unit. CDC 18.130.150(C)(1)(e). The hearings officer finds the applicant made that
showing. The parking regulations require 2 off-street spaces for a single family home.
There are at least four off-street parking spaces on the property: two in the garage and two
on the driveway. Therefore the CUP complies with the parking standard. The fact that
two of the parking spaces are tandem spaces is not relevant. Tandem spaces are permitted
in such a setting. See CDC 18.106.050(F)(1) and (I)(1). Because the residents of the two
dwelling units are related, it is reasonable to expect them to cooperate about moving
vehicles onto and off of the property. The hearings officer finds the site is of a sufficient
size and is improved sufficient to accommodate the parking needs of the proposed CUP.
The hearings officer finds the Farrimonds' perceived on-street parking constraints are not
relevant to the applicable approval criteria.
d. Parking spaces are required to be provided on the site of a dwelling. But
they are not required to be used. On-street parking can be used if it is available. It does not
count toward required on-site parking. CDC 18.106.020(V). The hearings officer finds
Hearings Ogcer Final Order
CUP 95-0003 (Leicluy) Page 2
6 0
no basis at law for requiring the Leichtys to parking the vehicle of the resident of the
second living unit in the garage or on the driveway. If on-street parking is available, the
Leichtys are allowed to use it to park vehicles consistent with the CDC.
3. However the hearings officer finds that a CUP for a second living unit is subject
to one standard that must be fulfilled over time. CDC 18.130.150(C)(1) provides that the
second living unit can be occupied only by a person related by blood or marriage to the
owner of the property, and that owner must occupy the principal dwelling on the site.
Compliance with this standard must occur over time and across changes in ownership. To
facilitate continuing compliance with that standard, the hearings officer finds a condition of
approval should be imposed requiring the applicant to file a statement in the office of the,
County Recorder with the deed to the property that the second living unit can be occupied
only by a relative of the owner of the property, and that owner must occupy the principal
dwelling on the site. This will put potential third party purchasers of the property on notice
that the second living unit is subject to certain limitations.
VI. CONCLUSION AND DECISION
1. Based on the findings adopted and incorporated herein, the hearings officer
concludes that the proposed conditional use permit complies with the applicable criteria and
standards of the Community Development Code, provided development that occurs after
this decision complies with applicable local, state, and federal laws and with conditions of
approval warranted to ensure such compliance occurs.
2. In recognition of the findings and conclusions contained herein, and
incorporating the Staff Report and other reports of effect agencies and public testimony and
exhibits received in this matter, the Hearings Officer hereby approves CUP 95-0003,
subject to the following conditions of approval:
a. The applicant shall apply to the City for and receive approval of a
building permit for conversion of the basement into an accessory living unit.
b. Before the City issues the building permit, the applicant shall file
the following statement or equivalent in the office of the County Recorder with the
deed to the property:
"The second living unit can be occupied only by a person related by
blood or marriage to the owner of the property, and that owner must
occupy the principal dwelling on the site. Other occupancy violates
the Tigard Community Development Code. The City may enforce
the restrictions on the use of the second dwelling unit, such as by
ordering the vacation or conversion of the second living unit if the
property owner does not comply with applicable use restrictions."
this 25th day of joys, 1995.
Larry Epste', =eirg`sOfficer
City of Ti and Hearings Oricer Final Order
CUP 95-0003 (Leichry) Page 3
• •
AGENDA ITEM 2.1
BEFORE THE LAND USE HEARINGS OFFICER
FOR THE CITY OF TIGARD, OREGON
Regarding an application by Mark Leichty CUP 95-0003
to allow a 700 square foot accessory dwelling
unit within a single-family detached residence.
1. SUMMARY OF THE REQUEST
CASE: Conditional Use Permit
CUP 95-0003
SUMMARY: A request for Conditional Use approval to allow a 700 square foot accessory
dwelling unit within a single-family detached residence.
APPLICANT/OWNER: Mark Leichty
13398 SW 136th Place
Tigard, OR 97223
COMPREHENSIVE PLAN DESIGNATION: Medium-Low Density
ZONING DESIGNATION: R-7 (Residential, 7 units per acre)
LOCATION: 13398 SW 136th Place (WCTM 2S1 4CA, tax lot 8500). West of SW Hillshire
Drive, east of SW 136th Place and south of SW Westridge Terrace within Hillshire Subdivision.
APPLICABLE LAW: Community Development Code Chapters 18.52, 18.106, 18.108, 18.130,
18.164. Comprehensive Plan Policies 2.1.1, 7.1.2, 7.3.1, 7.4.4, 7.6.1, and 8.1.3.
STAFF RECOMMENDATION: Approval subject to conditions.
II. SITE AND VICINITY INFORMATION
A. Background Information:
The subject parcel was created in 1993 with the recording of the "Hillshire"
subdivision. No other development applications have been filed with the City.
HEARINGS OFFICER - CUP 95-0003 - LIECHTY
Pagel