City of Albany v. Linn County

Under LCC 930.700(E), the county must obtain city approval when an interchange in density occurs by any means, not just when the subject property’s zoning is changed through a zoning map amendment or when the density allowed in the zone is changed through a text amendment to the LCC.

The city appeals a county decision authorizing a minimum lot size variance for several lots created via partition of the subject property, which is located in the Urban Growth Area-Urban Growth Management 20 (UGA-UGM-20) zone. 

Under Linn County Code (LCC) 938.100, variances are only available in the Rural Reserve Zone under certain conditions. Under LCC 938.300(B)(1), even where variances are available, they may only be granted when conditions or circumstances exist that render development impractical or impossible. In a subassignment of error, the city argues that the variance constitutes an improper rezoning of the subject property because it did not satisfy LCC 938.300(B)(1). Under LCC 938.340, which specifically addresses minimum lot size variances in UGA-UGM zones, while LCC 938.300(B)(2) and (3) must be met, there is no mention of LCC 938.300(B)(1). Thus, LUBA concludes that, in adopting LCC 938.340, the county made an express decision not to apply LCC 938.300(B)(1) in UGA-UGM zones. This subassignment of error is therefore denied. 

Under LCC 930.700(E), the county may not interchange the density of one UGA-UGM zone with that of another without approval by the affected city. In another subassignment of error, the city argues the county erred in finding that LCC 930.700(E) was not applicable to the variance at issue. In making its findings, the county interpreted LCC 930.700(E) to apply only when the subject property’s zoning is changed through a zoning map amendment or when the density allowed in the zone is changed through a text amendment to the LCC. LUBA agrees with the city that the county’s interpretation is inconsistent with the express language of LCC 930.700(E) because that provision does not limit its application according to the means by which the interchange of density occurs. Furthermore, because the variance at issue reduces the parcel size in the UGA-UGM-20 zone, LUBA conclude that the variance does in fact qualify as an interchange in density for which the county was required to obtain city approval. Because the county did not obtain such approval, this subassignment of error is sustained and the county’s decision is REVERSED.