Glenwood 2006, LLC v. City of Beaverton

OAR 660-031-0026 provides that state agency permits must be compatible with acknowledged comprehensive plans and land use regulations. Because OLCC decisions regarding redemption centers are not listed in the statute, OLCC forms are not land use compatibility statements.

Oregon Beverage Recycling Cooperative proposed to modify an existing building to be operated as a beverage container redemption center (“BCRC”).  The property is zoned Community Service District (CS District), which is a commercial land use district.  Petitioner operates two veterinary hospitals on the adjacent property, and learned of the proposal from an Oregon Liquor Control Commission (“OLCC”) notice. Petitioner contacted respondent to express concerns about the proposal, and learned that intervenor had already applied for design review approval. The city subsequently issued its “Design Review Compliance Letter,” and approved the building permit for the BCRC. Petitioner subsequently appealed.

Petitioner claims that BCRCs are not an allowed use in the CS District. Respondent and intervenor argue that LUBA should declare petitioner’s argument as an improper collateral attack on a prior land use decision that determined the proposed BCRC was a permitted use in the CS District. Respondent and intervenor claim the prior land use decision is an OLCC form on which a city planning staff member checked a box to indicate the proposed BCRC is an allowed use. The OLCC form might constitute a final, binding decision if it was a land use compatibility statement. OAR 660-031-0026 states that state agency permits must be compatible with acknowledged comprehensive plans and land use regulations. Because OLCC decisions regarding redemption centers are not listed in the statute, the OLCC form is not a land use compatibility statement. Therefore, the OLCC form is not appealable to LUBA, and respondent may not rely on the OLCC form to establish the proposed BCRC as a permitted use in the CS district. Because it remains unclear as to whether the BCRC is an allowed use in the CS district, LUBA remands so the city can adopt findings to include in its Design Review Letter. REMANDED.