J. Conser and Sons LLC v. City of Millersburg

When a local government denies an application for a planned development, that decision must include findings sufficient to apprise the applicant of what steps might be taken to obtain approval or inform the applicant that it is unlikely the application will be approved.

J. Conser and Sons, LLC (Conser) appealed a city decision denying Conser’s request for approval of a planned development subdivision on a 41.12-acre property that would include roads (8.11 acres), single-family dwellings on 138 individual lots (19.97 acres), and an open space natural area comprised mostly of drainage ways, floodplains, and wetlands (13.04 acres). The proposed subdivision is zoned Rural Residential – Urban Conversion (RR-10-UC) and is subject to the conditional use provisions of the Millersburg Land Use Development Code (MLUDC). The city denied Conser’s request on the basis that the 13.04-acre natural area did not warrant an exception to 10,000-square foot minimum lot size, 80-foot lot width, and 20-foot rear yard setback requirements.

Conser’s fourth assignment of error contended, in part, that the city erroneously determined that the natural area was a liability rather than an asset, that the city’s finding was not supported by evidence in the record, and that the city’s comprehensive plan and the MLUDC both encourage preservation of open space. Despite agreeing with Conser on that point, LUBA held that the city’s description of the natural area as a liability was not itself reversible or remandable error. Conser additionally assigned error to the city’s failure to advise Conser of changes that might make the planned development approvable. LUBA agreed with Conser that the city’s decision must be remanded to provide further guidance on the types of changes that might lead to approval of the subdivision. LUBA noted that, although it is not the city’s obligation to redesign the proposal, “a local government’s findings must be sufficient to inform the applicant either what steps are necessary to obtain approval or that it is unlikely that the application will be approved.” Bridge Street Partners v. City of Lafayette, 56 Or LUBA 387, 394 (2008). REMANDED.