Beaverton Business Owners, LLC v. City of Beaverton

(1) Where a local code defines one word in two different ways, a local government does not err in relying on one of those definitions where that definition was the only one in effect when the local code provision at issue was enacted and where the other definition was adopted solely to comply with federal law. (2) Where a local code provision is intended to allow “flexibility and originality,” uses the word “should,” and allows for the consideration of a list of factors, a local government does not err by refusing to require strict compliance with its terms.

Intervenor applied for design review approval to develop an office building, athletic facility, outdoor pool area, and parking lot on property zoned Commercial Corridor (CC). The city approved the application and this appeal followed.

To show that affected intersections would continue to meet mobility targets, intervenor submitted a traffic impact analysis (TIA) based on a 2007 report. Although petitioner submitted traffic counts from a nearby fitness center which were higher than the 2007 report, the city relied on intervenor’s TIA in approving the application. In the first assignment of error, petitioner argues the city’s decision is not supported by substantial evidence because the 2007 report is outdated, because more recent studies of other facilities show more traffic than the 2007 report, and because the facilities studied in the 2007 report were smaller. Because intervenor’s TIA also included data from 2018, because more recent studies actually show less traffic than the 2007 report, because the 2007 report took the facilities’ smaller size into account, because intervenor’s proposed facility would produce fewer trips due to its membership structure, and because petitioner’s traffic counts were unreliable, LUBA agrees with respondents that a reasonable person would rely on intervenor’s TIA in making a decision. The first assignment of error is therefore denied.

Under Beaverton Development Code (BDC) 20.10.20(23), recreational facilities are permitted in the CC zone. Under BDC 20.10.40, uses in the CC zone must be conducted “wholly within an enclosed structure.” BDC Chapter 90 defines “structure” to mean either “[a]nything which is constructed” or “[a] walled and roofed building.” The city concluded that intervenor’s proposed outdoor pool is wholly within an enclosed structure because it is surrounded by retaining walls, building walls, and fences, which qualify as “structures” under the first definition. In its second assignment of error, petitioner argues the city improperly construed BDC 20.10.40 in relying on the first definition. Because BDC 20.10.40 does not use the word “indoors,” because the first definition of “structure” was the only one in effect when BDC 20.10.40 was enacted, and because the second definition was enacted solely to comply with federal law, LUBA agrees with respondents that the city’s reliance on the first definition is not inconsistent with the express language or purpose of BDC 20.10.40. The second assignment of error is therefore denied.

Under BDC 60.05.35.6, “[p]rimary building entrances should be oriented toward and located within close proximity to public streets . . . . Property size, shape and topographical conditions should also be considered.” While the entrance to intervenor’s proposed office building is oriented toward public streets, the entrance to intervenor’s athletic facility is not. In the third assignment of error, petitioner argues the city improperly construed BDC 60.05.35.6 in approving the application since the athletic facility entrance is the primary entrance and, even if the provision allows more than one “primary” entrance, there is no evidence that the office building entrance is in fact a primary entrance. Because BDC 40.20.05 states that the purpose of BDS Chapter 60 is to allow “flexibility and originality” and “to recognize unique circumstances where corresponding standards are found to be unnecessary or desirable,” because BDC 60.05.35.6 only uses the word “should,” because the athletic facility entrance is still “in close proximity to” public streets, and because the property is triangular in shape with access hindered by a high speed on-ramp, LUBA agrees with respondents that the city did not misconstrue BDS 60.05.35.6. The third assignment of error is denied, and the city’s decision is AFFIRMED.