Group B, LLC v. City of Corvallis

Under ORS 197.307(4), “a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of needed housing on buildable land” and where a local government must interpret a provision of a land use regulation such a land use regulation is not clear and objective unless the local government proves otherwise.

Petitioner Group B, LLC (Group B) challenged the City of Corvallis’s decision to deny its application for planned development approval for a two-story, 10-unit apartment building on a 0.81-acre lot known as “Tract B.” The city denied the application on three grounds: (1) inconsistency with Condition 12 of the 1981 detailed development plan that applies to Tract B; (2) inconsistency with the planned development standards of Corvallis Land Development Code (LDC) 2.5.40.04 that requires that proposed development be compatible with surrounding development; and, (3) inconsistency with cul-de-sac standards that prohibit the cul-de-sac access street from providing access to more than 18 dwelling units. On appeal to LUBA, Group B assigned to error five separate bases for the denial, the first three of which are summarized below.

The first and second assignments of error argued that the city’s standards on which it based the denial were—contrary to ORS 197.307(4)—not clear and objective. Following extensive analysis, LUBA agreed with Group B that the city failed to “adopt and apply only clear and objective standards . . . regulating the development of needed housing on buildable land,” because Condition 12 is ambiguous regarding whether any development of Tract B is permissible. The third assignment of error challenged the city’s interpretation of LDC 4.0.60.c.2, which provides cul-de-sacs “should” not serve more than 18 dwellings, arguing the term “should” means “[e]xpressing what is desired, but not mandatory” per the definition of “should” found at LDC 1.6.30. LUBA sustained the third assignment of error, having determined that the fact that the city had to interpret the code meant it was not a clear standard, and the city failed to prove otherwise. The fourth assignment of error was sustained as well, and LUBA determined that the fifth assignment of error need not be addressed. REVERSED.