Oster v. City of Silverton

Under ORS 197.195(1), in order to incorporate a comprehensive plan standard as approval criteria for limited land use decisions, a local government must make clear what specific plan provisions apply and may not rely on incorporation by reference of the entirety of plan.

Petitioner challenges a city decision denying a tentative subdivision plat. Petitioner submitted an application for tentative plat approval to subdivide the property into 40 lots at permitted sizes and to develop those lots with housing at permitted densities. Concluding that the Silverton Development Code (SDC) incorporated provisions of its Transportation System Plan (TSP) by reference, the city denied the application because the proposal would send additional traffic to two off-site intersections but did not include improvements that would bring those intersections to the level of service (LOS) identified as an action item in the TSP. This appeal followed.

Under ORS 197.195(1), local governments are required to incorporate all comprehensive plan standards applicable to limited land use decisions (including tentative plat approvals) into their land use regulations via post-acknowledgment amendments within two years of September 29, 1991. The law also provides that, if a local government does not do so, those plan provisions may not be used as a basis for local government decisions. In the second assignment of error, petitioner argues that, because the SDC provisions relied upon by the city did not make clear what specific plan provisions apply to limited land use decisions as approval criteria, the city’s decision violates ORS 197.195(1). The city and intervenor respond that, because the city incorporated by reference the entire TSP into sections of the SDC, it has effectively incorporated the action items of the TSP into the SDC as approval criteria for limited land use decisions. LUBA agrees with petitioner that incorporation by reference of the entirety of the city’s public facilities plans does not satisfy the incorporation standards of ORS 197.195(1). The second assignment of error is therefore sustained.

Under ORS 197.835(10)(a), LUBA may not remand and must reverse a denial decision if it determines on the basis of the record that the local government lacks the discretion to deny the application. Because the city gave only one reason for denial, and because LUBA concluded that that reason is outside the city’s range of discretion under its comprehensive plan and implementing ordinances, the city is ordered to approve the application but may include previously-adopted conditions of approval. The city’s decision is REVERSED.