Posted by: Patricia Salkin | November 19, 2016

OR Appeals Court Finds Hearing Officer Improperly Construed County Comprehensive Plan Policy as Permitting Preclusion of Complete Application of Rezoning Factors

Petitioner Lennar Northwest, Inc., sought to redevelop its property into a 72–lot residential subdivision, and therefore applied to the county for a zone change to Immediate Urban Low Density Residential R–8.5: a zoning district that allows lots with a minimum lot size of 8,500 square feet in area. The approval standards for the applicable zone changes were set out at ZDO 1202.03, which required the county to determine whether “the proposed zone change is consistent with the applicable goals and policies of the Comprehensive Plan” and to assess the adequacy of public utilities and streets for development under the proposed zoning district. The hearings officer denied the zone change and subdivision approval applications. Petitioner appealed the denial to Land Use Board of Appeals (LUBA), which reversed and remanded the county’s decision.

On appeal, respondents argued that LUBA erred in requiring all seven factors in Policy 4.R.2 be considered equally, asserting that the plain text of the provision required that particular zoning “shall” or “should” be applied under particular factual settings. They also argued that the context suggested that the factors were to be “balanced” in the sense of giving effect to some, but not all, of the factors. Here, the hearings officer determined that Factor 3 was only “slightly supportive” of the requested R–8.5 zoning because there were no sidewalks connecting the property to the transit stops. However, the text of Factor 3 provided that, if the property was within walking distance of a transit stop, then the property “should be zoned” R–2.5, R–5, R–7, or R–8.5. Despite this unambiguous language, the hearings officer interpreted the text to say that the property could not be zoned to a higher density residential district because the property was not improved with connecting sidewalks.

Additionally, the court found LUBA correctly determined that the hearings officer erred in interpreting Factor 4, which he concluded neither strongly favored nor disfavored R–8.5 zoning. That factor provided that, if the property was proximate to “trip generators,” then it “shall be considered” for the density allowed by R–2.5, R–5, R–7, or R–8.5 zoning. Here, since the property was proximate to trip generators, Factor 4 strongly favored a rezoning to one of those higher-density zoning districts.

Finally, the court found that LUBA correctly determined that the hearings officer erred in construing Policy 4.R.2 to preclude the complete application of some of the relevant factors to the rezoning request under the guise of “balancing.” However, the court held that decisional standards become facially inconsistent in application when two or more provisions require different and incompatible results. Accordingly, the court affirmed the LUBA’s holding that the hearings officer erred in giving less determinative effect to Factors 3 and 4.

Lennar Northwest, Inc. v. Clackamas County, 280 Or.App. 456 (2016)


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