M & T Partners, Inc. v. City of Salem

Voluntary descriptions, statements, or representations made during rezoning proceedings are not binding on subsequent proposals unless they are memorialized in conditions of approval.

In 2007, the city conditionally changed the subject property’s comprehensive plan designation from Residential to Commercial and rezoned it from Residential Agricultural to Commercial Retail. One of the conditions of approval required petitioner to make off-site transportation improvements. Another condition required the property to be developed with a retail shopping center with a total gross leasable area (GLA) of less than 300,000 square feet. In addition, under Salem Revised Code (SRC) 808.030(a), removal of protected trees is prohibited without a permit unless it is necessary in connection with construction of a commercial facility. In 2018, petitioner applied for site plan review for approval of a shopping center, including a Costco store, which would be less than 299,000 GLA. Relying on various representations made by petitioner during the 2007 proceedings, the county interpreted the 2007 decision to prohibit a regional facility that draws customers from a great distance. Concluding that the Costco store is a regional facility, and that the application failed to satisfy SRC 808.030(a), the city denied the application and this appeal followed.

In the first assignment of error, petitioner argues the city improperly construed the 2007 decision by adding conditions of approval that it did not adopt, and that the city’s decision is therefore a collateral attack on the 2007 decision. Specifically, petitioner argues that, by conditioning the 2007 decision on the GLA limit, the city determined that any store meeting that requirement is not a regional facility. The city responds that its interpretation of the 2007 decision is entitled to deference or, alternatively, that its interpretation is correct. Because ORS 197.829(1) does not require LUBA to affirm a local government’s interpretation of a prior land use decision, and because voluntary descriptions, statements, or representations made by an applicant are not binding unless they are memorialized in conditions of approval, LUBA agrees with petitioner that the city improperly construed the 2007 decision. However, LUBA agrees with the city that its argument is not a collateral attack on the 2007 decision. While the city can argue that representations made during rezoning proceedings are binding on subsequent proposals, those arguments fail where, as here, those representations are not memorialized in conditions of approval. The first assignment of error is therefore sustained, in part.

In the second assignment of error, petitioner argues the city failed to address its argument that it acquired a vested right due to the expenditures it made on the off-site transportation improvements required by the 2007 decision. Because the city did not adopt any meaningful responsive findings, this assignment of error is sustained, in part. Although LUBA concludes that the city’s denial of the application under SRC 808.030(a) is valid, remand is required for the city to address this threshold argument. The city’s decision is therefore REMANDED.