Posted on 05/27/2009

In an opinion issued by Oregon's Land Use Board of Appeals ("LUBA") on October 1st, 2008, it was held that the City of Lake Oswego had acted improperly in determining that age, in and of itself, was a life-function disability. The underlying facts of the case are that the City of Lake Oswego and a developer were attempting to construct a large low-income, senior housing facility in the Waluga Neighborhood of Lake Grove. The Waluga Neighborhood Association opposed this development because of the fact that traffic and parking issues were not adequately addressed. The proposed development provided for 20 parking spaces for a 45 unit building that could have 2 or more tenants in each unit. The impact of all of the additional traffic and parking in a largely residential neighborhood with narrow streets would have been disastrous for the local residents.

In order to qualify under the City of Lake Oswego's municipal code, the development had to qualify as "congregate housing" which is defined by the Code as serving "those that have life-function disabilities due to age, medical, or mental condition." In their rush to approve the development, the City found that the 20 parking spaces, including a single handicap parking space, would be sufficient for 90 or more handicapped residents, their caregivers and visitors. Even more importantly for purposes of the LUBA appeal was that the City decided that having achieved an age of 62 years automatically qualified a person as having a life-function disability.

LUBA correctly held that the municipal code does not allow age, in and of itself, to be considered a life-function disability but, rather, that age must cause a life-function disability, just as could be caused by a medical or mental condition.

The case name for this litigation is Waluga Neighborhood Association v. City of Lake Oswego, et al., LUBA No. 2008-035.

The Waluga Neighborhood Association was represented by the Luby Law Firm with Kevin W. Luby making the oral arguments at hearing and attorney Elizabeth Lemoine and paralegal Pamela Sullivan handling the brief and preparatory work.

It is unknown at this time as to whether the City will continue to assert that being 62 years of age renders someone with a life-function disability. If so, it will be interesting to see how many City Employees apply for disability benefits based upon such definition.