Nicita v. City of Oregon City

Under OAR 660-023-0250(3)(b), a local government is not limited to considering regulations specifically adopted to implement Goal 5 in determining whether new uses could conflict with acknowledged Goal 5 resources.

Petitioners appeal a decision re-approving comprehensive plan and zoning map amendments to allow mixed-use commercial and residential development. A portion of the subject property is subject to a Natural Resources Overlay District (NROD) due to a nearby creek which is listed in the city’s Goal 5 resource inventory. In its original decision, the city assumed that the existing NROD regulations would protect the resource from the impacts of the new uses. LUBA remanded the decision because, under OAR 660-023-0250(3)(b), the city is required to actually evaluate whether the new uses could conflict with an acknowledged Goal 5 resource. On remand, the city concluded that existing regulations were sufficient to eliminate new or increased impacts on the resource from development allowed under the new zone. In addition, the city adopted an economic, social, environmental, and energy (ESEE) analysis concluding that the positive ESEE consequences of the new uses outweighed the negative ESEE consequences to the resource. The city approved the amendments and this appeal followed.

Under the first and second assignments of error, petitioners argue the city’s conclusion that existing regulations are sufficient to eliminate new or increased conflicts with the resource is not supported by adequate findings and substantial evidence. Specifically, they argue the city erred in failing to adopt findings addressing the impacts of increased impervious surfaces on the temperature of and amount of pollutants from stormwater runoff entering the creek. In addition, they argue that the city erred in relying on regulations that were not adopted specifically as part of the city’s acknowledged Goal 5 program in reaching its conclusion. While LUBA agrees with intervenor that a local government is not limited to considering regulations specifically adopted to implement Goal 5 in determining whether new uses could conflict with those resources, LUBA agrees with petitioners that the city’s findings regarding the effects of stormwater runoff are inadequate. The first and second assignments of error are therefore sustained, in part.

Under OAR 660-023-0040(3)(b), if the city cannot eliminate the possibility that the new uses could conflict with the resource, it must repeat the steps in the Goal 5 planning process, one of which is an ESEE analysis. While the city adopted an ESEE analysis on remand, under the third assignment of error petitioners challenge the adequacy of that analysis. Specifically, petitioners argue the ESEE analysis does not comply with OAR 660-023-0040(1)(a) because it does not identify discharges of polluted and warmed stormwater as conflicting uses. Because the ESEE analysis identified the new development allowed in the new zone as the conflicting use and generally concluded that it could impact water quality and temperature in the resource, and because nothing in OAR 660-023-0040(2) requires a more detailed identification, LUBA rejects petitioners’ argument and the third assignment of error is denied. As a result of LUBA’s rejection of petitioner’s challenge to the ESEE analysis, the first and second assignments of error do not provide a basis for reversal or remand and the city’s decision is AFFIRMED.