Eagle-Eye v. City of Veneta

Under ORS 197.835(4)(a), while a petitioner may raise new issues to LUBA if the local government failed to list applicable approval criteria, LUBA will refuse to allow such issues where petitioners argue the local government failed to identify the definitions section of its code as an applicable criterion but where petitioners do not establish that the local government was in fact required to do so.

Petitioners appeal application of the Planned Development (/PD) subzone and approval of a general Development Plan and Program for development of 233 units of senior housing on property zoned General Residential (GR). As proposed, the senior housing community includes, among other structures, a main building which would be used to house 36 assisted living units, 24 memory care units, and 44 independent living units, as well as a commercial kitchen, central dining room, and staff areas.

In its first subassignment of error, petitioners argue for the first time on appeal that the use does not qualify as a “residential facility” as defined in Veneta Land Development Ordinance (VLDO) 13.02 because it will house more than 15 individuals. While petitioners argued below that “[t]his kind of building is more of an industrial building and should not be built in a residential area for the size alone,” and that “[t]his area would need to be rezoned for it to be allowed,” LUBA concludes that this statement did not fairly raise any issue regarding whether the development is a “residential facility” and that the issue was therefore not raised below.

ORS 197.835(4)(a) gives LUBA the discretion to refuse to allow new issues to be raised if LUBA finds that the issue could have been raised. Petitioners argue that they can raise the issue of whether the development is a “residential facility” to LUBA because the city did not identify VLDO 13.02 as an applicable approval criterion. Because petitioners do not establish that the city was required to identify the definitions section of its code as an approval criterion, and because petitioners have not explained why they could not raise their argument below, LUBA concludes that it is waived and the first subassignment of error is denied.

In the second subassignment of error, petitioners argue that the city improperly approved the main building as a “related commercial use[] which [is] designed to serve the development[.]” Permitted uses in residential zones combined with a /PD subzone include residential uses of land and related commercial uses that are designed to serve the development of which they are a part, when approved by the Planning Commission and the City Council. VLDO 4.14(9)(a). The city council expressly adopted the staff report findings that the applicant was proposing a residential use of land. The city determined that the use was residential and concluded that an exception to the residential design standards was needed because of the zoning of the site. Further, the city council held that residential design standards applied to the main building as a residential care facility. Considering the findings as a whole, LUBA concludes that the city council rejected the argument that the building was a “related commercial use” and, instead, approved the main building as a residential use. This subassignment of error is denied. The city’s decision is AFFIRMED.