Lundeen v. City of Waldport

Under WDC 16.60.030(C)(4), construction activities, including those associated with constructing a road to the subject property, are part of a development and must be evaluated to determine whether they will create a drainage or pollution problem outside the planned area.

Petitioner appeals a city council decision approving a preliminary plan for a 34-lot single-family residential planned development on 7.75 acres of property. Under WDC 16.60.030(C)(4), during the preliminary plan stage, the planning commission must determine that the proposed utility and drainage facilities are adequate for the population and will not create a drainage or pollution problem outside the area. The city council approved the preliminary plan and this appeal followed.

Petitioner argues the city’s findings fail to address that 300 feet of newly constructed access road leading to the property will result in drainage or pollution problems outside the planned area. Intervenor responds that the road extension is not part of the planned development since the road is not owned by the applicant, that intervenor must comply with DEQ standards to control runoff during construction, and that post-development protections can be established during engineering review. Because intervenor does not explain why WDC 16.60.030(C)(4) does not apply to activities within a public right of way, even though they are necessary for the proposed development; because the city is required to determine compliance with WDC 16.60.030(C)(4) during the preliminary plan stage, and not through post-development conditions; and because no findings explain how compliance with DEQ standards serve as a basis for the conclusion that WDC 16.60.030(C)(4) is satisfied, LUBA agrees with petitioner that remand is necessary for the city to adopt findings addressing the effect of construction activities on drainage and pollution. The assignment of error is sustained in part and the city’s decision is REMANDED.