City of Albany v. Linn County

OAR 661-010-0071(1)(c) states that LUBA shall reverse a land use decision where the decision “violates a provision of applicable law and is prohibited as a matter of law.” LLC 938.340(B) allows for variances which are “consistent with the city’s comprehensive plan,” LUBA found that this variance was not and it was, therefore, “prohibited as a matter of law.”

Applicants sought a partition of a 1.98-acre parcel with a current single-family home into two parcels measuring one acre and .98 acres. The applicants also sought approval of an additional single-family home on the would-be partitioned parcel. The application was approved under a variance of a 20-acre requirement for development of a single-family home. Petitioner appeals the board of county commissioner’s decision approving the variance to the UGA-UGM-20 zoning. 

In the first assignment of error, petitioner contends the board of county commissioners’ determination that the proposed action would be consistent with the city’s comprehensive plan as stated in LCC 938.340(B) and (C) as a matter of law. The variance approval rested on the conclusion that LCC 938.340(B) and (C) were satisfied. Petitioner argues that variance is inconsistent with the Albany Development Code which prohibits development of dwellings on private septic systems where no public sewer is available within 300 feet of the property “except for construction of one single-family dwelling on an existing lot of record or on a parcel no smaller than five acres created through the land division process.” At 1.98 acres, the current parcel is inconsistent with these requirements, and any home developed on the newly created parcel after the proposed partition would be as well. 

LUBA sustained petitioner’s assignment of error and determined the proposed variance is not consistent with the city’s comprehensive plan laid out in ADC 12.480. LUBA further cited OAR 661-010-0071(1)(c) which explains that LUBA shall reverse a land use decision where the decision “violates a provision of applicable law and is prohibited as a matter of law.” REVERSED.