Mumper v. City of Salem

(1) Where local code provisions ascribe significance to a master plan’s “goals” as well as its “policies,” a local government errs by approving a sub-area plan after addressing the master plan’s “principles” without addressing the strategies it discusses to actualize those principles. (2) Balancing master plan principles against one another may be appropriate where multiple principles require incompatible results, but it is not appropriate where all of the principles can be complied with. (3) The fact that a sub-area plan furthers the master plan’s principles is insufficient to demonstrate that it is consistent with those principles.

In 2005, the city adopted the Fairview Master Plan (FMP) which applied Mixed Intensity (MI) and Low Intensity (LI) overlays to the subject property. Under SRC 530.030, the area subject to the FMP may be developed incrementally pursuant to adopted refinement plans. The city adopted intervenor’s proposed refinement plan for the subject property, and this appeal followed.

Under Salem Revised Code (SRC) 530.030(e)(1), refinement plans must be consistent with the FMP. The FMP itself contains 13 principles as well as strategies to actualize those principles. In making its decision, the city concluded that, “on balance,” intervenor’s refinement plan was consistent with the FMP because it furthered the principles. In the first assignment of error, petitioner argues the city misconstrued 530.030(e)(1) by failing to address the strategies in addition to the principles. Because other code provisions refer to the FMP’s goals as well as its policies, and because the dictionary defines “principle” and “goal” differently from “policy,” LUBA agrees with petitioner that the city erred in focusing on the principles without addressing the strategies. LUBA also concludes that, while balancing may be appropriate when multiple provisions require incompatible results, it is not appropriate here because the city did not identify any incompatibility. In addition, LUBA concludes the fact that the refinement plan merely furthers the principles is insufficient to demonstrate that it is consistent with those principles. In turn, because the findings are inadequate to explain how the refinement plan is consistent with a natural resource protection strategy, because the refinement plan is inconsistent with both a walkability principle and the FMP’s street plan, and because the fact that SRC 530.025(b)(2)(G) requires the city to amend the FMP where a refinement plan significantly changes pedestrian or vehicular traffic circulation indicates that the street plan is binding rather than conceptual, the first assignment of error is sustained.

Under SRC 530.025(b)(2)(B), where a refinement plan changes residential density by more than 20%, the city must amend the FMP. Under SRC 530.050, residential uses within a refinement plan are “subject to either the development standards set forth in this section or the development standards established in the refinement plan.” Under SRC 530.050(b), the residential density in the LI overlay must be between 5 and 8 dwelling units per acre, while the residential density in the MI overlay must be between 7 and 35 dwelling units per acre. Under intervenor’s refinement plan, residential density in the LI overlay would be between .5 and 2 dwelling units per acre, while residential density in the MI overlay would be between 1 and 3 dwelling units per acre. In the third assignment of error, petitioner argues that, because the refinement plan reduces the residential density in SRC 530.050(b) by more than 20%, the city erred by not amending the FMP. LUBA agrees with petitioners that, while SRC 530.050 states that residential density in refinement plans are subject to the standards in either SRC 530.050(b) or the refinement plan itself, interpreting that provision literally would make the amendment requirement at SRC 530.025(b)(2)(B) meaningless. Because, under ORS 174.010, interpretations should give effect to all related provisions if possible, LUBA agrees with petitioner that the city erred in not amending the FMP. The third assignment of error is sustained and, because approval of intervenor’s proposed refinement plan is prohibited by law, the city’s decision is REVERSED.