Bohan v. City of Portland

Under PCC 33.110.235.C.2, a covered deck that it attached to a dwelling, but not enclosed, can satisfy the minimum outdoor area requirement.

Intervenor-respondent applied to partition an approximately 9,728 square-foot property zoned Residential 5000 (R5) into two parcels, with one parcel as a flag lot. The city approved the application, and this appeal followed. Portland City Code (PCC) 33.110.235.C.2 requires that a minimum of 250 square feet of outdoor area be provided for each lot. Specifically, it requires that “[t]he area [] be surfaced with lawn, pavers, decking, or sport court paving which allows the area to be used for recreational purposes. User amenities, such as tables, benches, trees, planter boxes, garden plots, drinking fountains, spas, or pools may be placed in the outdoor area. It may be covered, such as a covered patio, but it may not be fully enclosed.”

The city evaluated the proposed parcels and found that an existing covered deck satisfied the minimum outdoor area requirement. The city also found that an “existing concrete pad” met the minimum outdoor area standard. Petitioner argues the city improperly construed PCC 33.110.235. Specifically, petitioner argues the existing deck cannot satisfy the minimum outdoor area requirement because the existing deck is not a “patio.” Rather, because it is attached to the existing dwelling, it constitutes a “porch,” which does not qualify under PCC 33.110.235. The city responds that it correctly construed PCC 33.110.235 to conclude that a covered deck that is attached to a dwelling, but not enclosed, can satisfy the minimum outdoor area requirement. LUBA agrees with the city that the existing covered deck and the existing concrete pad satisfied the minimum outdoor area requirement and, therefore, the city’s decision is AFFIRMED.