A critical issue that I discussed in the previous post is the Design Manual rule that allows “nonconforming development.” While the intent of Section 2.02 Nonconforming Development seems clear, I should note that the Design Manual Appendix A Definitions has a problematic definition:

“Non-conforming: a structure that was approved (record of SROA Design Review approval) in its current state and has continued in such state without alteration but does not conform to the current Design Manual standards.“

First, consider an accepted legal explanation of the constitutional basis for allowing nonconforming development, also known as “grandfathering.” See link. This principle is rooted in the Due Process Clause of the Fourteenth Amendment and the Fifth Amendment’s Takings Clause. Courts have generally ruled that it would be unjust and potentially unconstitutional to require the immediate termination of a use or structure that was legally established and in operation before a new zoning ordinance was adopted.” 

Here are case notes from the Oregon Land Use Board of Appeals. Link. While these are not directly determinant with respect to the SROA Design Manual, they are very informative regarding application of the constitutional requirements.

It’s clear that the Design Manual definition conflicts with the constitutional rights that a legally established use or structure must not be prohibited unless there’s a compelling reason, such as public safety. This is just one more example of how poorly written and legally flawed are many sections of the Design Manual.