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Nearly two years after the state passed legislation mandating that cities allow accessory dwelling units (ADUs), the city of Albany remains out of compliance.

Senate Bill 1051, which took effect in August 2017, amended an Oregon state statute to mandate that cities with populations greater than 2,500 allow ADUs in areas zoned for detached single-family homes.

To comply with state law, the city had to amend its development code but efforts to do so were shot down twice when Mayor Sharon Konopa vetoed a motion in July of last year and again in February. The council did not have the five votes necessary to override either veto.

At the time, Konopa cited concerns about House Bill 2001, which requires duplexes to be permitted in cities of more than 10,000 where previously, land was zoned for single-family use. Supporters of the recently passed legislation hope to increase the housing supply but Konopa cited components of the legislation that bar cities from instituting regulations concerning parking and owner occupancy for ADUs.

In February, Konopa said she would revisit the issue at the conclusion of the legislative session. Last week, she said it was not something she would immediately address.

“I’m hearing rumblings that there could be a challenge over HB 2001 in court so it’s sort of in limbo,” she said.

To override Konopa’s veto, either Councilor Dick Olsen or Councilor Bill Coburn would have to change his mind and vote in the majority to allow Albany to change its development code.

“When the mayor vetoed months ago, I think one of her reasons, she believed state law would evolve and change and it did,” said Albany lead planner David Martineau.

According to Martineau, when city code falls short of state requirements, the city defaults to state law. So, while the city is technically out of compliance with state law by not allowing ADUs in all areas it allows single-family homes, it is not denying requests that are in line with state law.

“We can no longer legally deny them,” Martineau said.

So, what is the consequence for being out of compliance?

“That’s the consensus, it’s basically ‘so what?’” said city attorney Sean Kidd, noting that the city would like to bring its code into compliance with state law.

“The code could be misleading,” he said. “If someone wants to build an ADU and looks at the code and sees it’s not permitted in an area, that’s misleading if they do not understand state law trumps city code.”

Kidd went on to note that the major points of contention between Konopa and the councilors in favor of adopting an amended code were issues surrounding off-street parking and owner occupancy.

“Since HB 2001 passed, those two requirements cannot be regulated,” Kidd said. “At this point, the ADU issue, it’s almost moot what they were arguing about. There’s nothing left to argue about."

Kidd said the council could amend its code regarding ADUs during a broader effort to update city code, which takes place every few years.

Konopa said that as long as two members of the council were against ADUs being allowed throughout the city, she would maintain her stance.

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