Sky Lakes Medical Center, Inc. v. City of Klamath Falls

LUBA must affirm a governing body’s interpretation of a land use regulation unless the interpretation is inconsistent with the express language or purpose of the regulation—even if petitioner’s interpretation is equally plausible.

Petitioner appeals a city decision approving applications for a conditional use permit and site design review for a three-story building on property zoned Mixed Use (MU) that will be used and occupied by intervenors Department of Human Services (DHS) and Klamath Basin Behavioral Health (KBBH), a non-profit organization.

Under Klamath Falls Community Development Ordinance (CDO) 10.010, a “principal use” is the “predominant use of any lot or parcel.” In approving the application, the city concluded that, because two-thirds of the physical space in the building is allocated to government office uses, the principal use is government office. In its first assignment of error, petitioner argues that the city misinterpreted the term “predominant” in CDO 10.010 by relying on square footage allocation and that social service is the predominant use of the building since government employees will occupy it only to facilitate that use. Because the city’s interpretation is not inconsistent with the plain, ordinary meaning of “predominant,” and because it is equally as plausible as petitioner’s interpretation, LUBA affirms the city’s interpretation and the first assignment of error is therefore denied.

Under CDO 10.010, the MU zone requires buildings to have a vertical mix of use, such as a combination of commercial service and public uses. Government office uses are a specific kind of public uses, and commercial service uses are “any commercial enterprise which provides useful labor that does not produce or involve the sale of a tangible commodity or good.” In approving the application, the city found that, because the portion of the building occupied by KBBH is a commercial service use, the building satisfies the MU zone requirement. In the second assignment of error, petitioner argues city’s findings that the portion of the building to be occupied by KBBH is a commercial service use are inadequate and not supported by substantial evidence in the record. LUBA agrees with petitioner that the findings fail to explain why KBBH’s activities in the building qualify as a commercial service use and that remand is required for the city to explain its conclusion. The second assignment of error is therefore sustained.

Under CDO 11.105(3), a site must relate to streets and highways that are adequate to carry the traffic generated by the proposed use. In the third assignment of error, petitioner argues the city’s finding that CDO 11.105(3) was met is not supported by substantial evidence in the record because intervenor’s traffic study does not account for the traffic to be generated by KBBH employees. Because the trip generation rates in intervenor’s traffic study are based on the number of DHS employees, and do not account for additional KBBH employees, LUBA agrees with petitioner that it was not reasonable for the city to rely on them. The third assignment of error is therefore sustained and the city’s decision is REMANDED.