Department of Land Conservation and Development v. City of Klamath Falls

Under ORS 197.835(9)(a)(D), LUBA may reverse or remand a decision that misconstrues applicable law.

The document at the center of this appeal is a 2009 Economic Opportunities Analysis (“EOA”). The City of Klamath Falls’ comprehensive plan adopted this EOA which includes a “Technical Appendix” that delineates four sub regions: Klamath West, Klamath North, Klamath East and, and Klamath South. This EOA identified a deficit of land in the west sub region that needed to satisfy a short-term commercial demand. Intervenor, Badger Flats, LLP applied for an urban growth boundary (“UGB”) amendment to construct a lifestyle center on their property in the West Sub region. In approving the application, the City rejected alternative sites located in the West Sub region because it lacked one or more “site suitability characteristics.” Petitioner appealed the decision.

In the third assignment of error, petitioner challenged the First Site Suitability Characteristic (“FSSC”). The FSSC states, “[t]he property must be within the western sub-region as identified in the EOA.” The NEW Goal 14 and OAR 660-024-0060(5) allows local government to specify “size, topography, or proximity” as site suitability characteristic and to limit consideration of alternative sites to land that has the specified characteristics. Respondents argue that the “proximity language” found in Goal 14 and OAR 660-024-0060(5) gives the city vast authority to geographically limit the scope of the alternatives analysis, thus making the FSSC appropriate. Petitioner argues that the authority to establish “proximity” site suitability characteristics and to “limit consideration to land that has the specified characteristics does not authorize the division of four sub regions based on “physical and manmade barriers, transportation corridors, and market conditions affecting commercial landscape.” LUBA agreed with petitioner, stating there is nothing in the language of Goal 14 or its amendments to suggest the City may divide into four sub regions based on the above criteria. Because the lower decision was reached by misconstruing applicable law, LUBA remands. REMANDED.