Oregon Coast Alliance v. City of Brookings

The appropriate time for a determination of whether development allowed under proposed zoning will comply with statewide planning goals is when the zoning is adopted.

Mahar/Tribble LLC (Mahar) applied to the City of Brookings for annexation of two lots, amendment of plan designation and zoning from Commercial and Industrial for the lots to residential, and amendment of the shoreland boundary based on a pending application to FEMA to revise the 100-year floodplain boundary. After holding a hearing on the planning commission’s recommendation for approval, the city council approved the annexation and plan and zoning amendments. Oregon Coast Alliance (OCA) argued that the city had failed to include a creek on the property in the coastal shorelands boundary, but LUBA found that the argument was waived for failure to raise it below, and that even if the argument had been raised the creek in question was contained within a pipe when it crossed the subject property and had “no apparent hydrologic or other connection with the adjacent land it traverses.” OCA next argued that the city failed to evaluate the adequacy of water services for anticipated development “relative to capacity” available. LUBA agreed, noting that the findings were conclusory and did not directly address the “availability” of water “relative to capacity.” OCA argued that findings regarding Goal 16 (Estuarine Resources) implementation were inadequate because they failed to address concerns from federal agencies about impacts of potential development. Mahar responded that there was no “action” approved that could violate Goal 16 because there was no approval of development plans, but LUBA held that the appropriate time to resolve compliance of future development possibilities with statewide planning goals is when the zoning is adopted. REMANDED.