Carson Property LUBA Appeal Inc. v. City of Corvallis

(1) In evaluating housing need, a local government may rely on deficits reported in its acknowledged Buildable Lands Inventory, regardless of whether subsequent re-zonings may have eliminated those deficits. (2) A local government determination of whether a “public need” for certain types of housing exists is not necessarily dependent on or limited to consideration of its acknowledged Buildable Lands Inventory, and may include a need for increased housing supply and diversity of housing types and locations.

Intervenors applied to change the comprehensive plan and zoning map designation of the 6-acre subject property from low density to high density residential (HDR). The city approved the application and this appeal followed.

Under Corvallis Comprehensive Plan (CP) 1.2.3 and Corvallis Land Development Code (LDC) 2.1.30.06(b), the CP may be amended if there is a “public need” for the change and if the advantages of the change outweigh its disadvantages. In approving intervenor’s application, the city concluded the amendment would help address a 12-acre deficit of HDR land identified in an acknowledged 1998 Buildable Lands Inventory (BLI). While the city recognized that it had rezoned 92 acres of other land to HDR after intervenors submitted their application, it concluded that it could not consider those re-zonings because, under ORS 227.178(3), the standards applicable to an application are limited to those that were applicable when it was submitted. Alternatively, the city concluded that, even if there were no deficit of HDR land, designating more HDR land would still serve a “public need” by increasing housing supply and diversity of housing types and locations. In the first assignment of error, petitioners argue the city’s findings of public need are inadequate and not supported by substantial evidence, and that the city misconstrued CP 1.2.3 and ORS 227.178(3). While LUBA agrees with petitioners that ORS 227.178 does not control the relevant date for ascertaining facts such as the deficit of HDR land, LUBA agrees with intervenors that (1) the city was allowed to rely on its acknowledged BLI in determining public need regardless of the subsequent re-zonings and, (2) because the city’s interpretation of “public need” as including housing supply and diversity of housing types and locations is not inconsistent with the express language of the LDC or CP, that interpretation is entitled to deference under ORS 197.829(1). The first assignment of error is therefore denied.

In the second and third assignments of error, petitioners argue the city’s findings regarding various transportation and wetland criteria, and that the advantages of the change outweigh its disadvantages, are inadequate. Because either (1) the findings are adequate, (2) petitioners did not raise the issue below, or (3) petitioners failed to challenge alternative findings, these assignments of error are denied, and the city’s decision is AFFIRMED.