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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