Nicita v. City of Oregon City

Under OAR 660-023-0250(3)(b), the city may not assume, without more, that previous Goal 5 overlay districts that were applied to protect from low density residential uses, will be adequately protected from commercial higher density development that is made possible by a post-acknowledgment comprehensive plan map amendment and zoning map amendment.

     Petitioner appealed Ordinance 16-1003, which approved zoning map and comprehensive plan amendments for intervenor-respondent’s property. Ordinance 16-1003 changed the existing Low and Medium Density Residential comprehensive plan designations to Mixed-Use Corridor (MUC) comprehensive plan map designation.

     Petitioner argued that post-acknowledgement comprehensive plan map amendment and zoning map amendment (PAPA) authorizes commercial uses that are not allowed under the existing residential map designations, and specifically allows for higher intensity uses, which could conflict with a Goal 5 resource site. Under OAR 660-023-0250(3)(b) the city must apply Goal 5 in approving the PAPA if it allows for a new use that could be conflicting with uses with a particular significant Goal 5 resource site on a resource list. Petitioner specifically argued that the PAPA allows for new uses that could be conflicting with a Goal 5 inventory site. The city found that no Goal 5 site was included in the PAPA and therefore did not apply Goal 5 to the PAPA.

     LUBA determined that the city erred in finding that Goal 5 did not apply because the city may not make assumptions regarding the protection of Goal 5 resources. OAR 660-023-0250(3)(b) requires that the city conduct an initial inquiry to determine whether new uses allowed under the PAPA could conflict with Goal 5 resources. If the city’s initial inquiry cannot eliminate the possibility of conflicts from the new uses allowed, the city must repeat the Goal 5 planning process steps to ensure the Goal 5 obligations continue to be met.

     Under ORS 197.175(2)(a), comprehensive plan amendments must comply with statewide planning goals, and under ORS 197.835(6) and 197.835(7) LUBA must reverse or remand an amendment if it does not comply. REMANDED.