Oregon Coast Alliance v. City of Bandon

(1) That a petitioner merely disagrees with a local government’s conclusions provides no basis for reversal or remand. (2) Absent some requirement to the contrary, where a city council explains its reasons for concluding that a certain criterion is met, it need not explain why it reached a different conclusion than the planning commission.

Intervenor applied for a conditional use permit (CUP) to replace a 24-unit motel with a 32-unit hotel, ground floor café, and off-site parking. The subject property is zoned Controlled Development One (CD-1) and is adjacent to a National Wildlife Refuge. The city approved the CUP and this appeal followed.

Under Bandon Comprehensive Plan (BCP) Special Policy 2, “[w]hen property within 100 feet of the Refuge property is proposed for development, the applicant shall demonstrate that the proposal will have no adverse impact on the function of the Refuge . . . by supplying detailed plans that include proposed landscaping and vegetation, shielded exterior lighting, and noise minimization.” In the first assignment of error, petitioners argue the city’s findings of compliance with Special Policy 2 are inadequate because they focus on operation of the hotel but do not consider adverse impacts from demolition and construction. In discussing Special Policy 2, the city found that (1) the function of the portion of the Refuge closest to the subject property is to provide public access for viewing the protected portion of the Refuge, (2) typical demolition and construction activities would not have an adverse impact on that function, and (3) the protected portion of the Refuge is remote from the subject property. In addition, the city found that the only “adverse impact[s]” relevant to Special Policy 2 are those relating to landscaping and vegetation, exterior lighting, and noise. Because petitioners do not challenge these findings but rather argue for a different conclusion, and because the findings otherwise identify the relevant criteria, the related evidence, and the basis for the city’s conclusion, LUBA agrees with respondents that the findings are adequate. The first assignment of error is denied.

Under Bandon Municipal Code (BMC) 17.20.040.C, development in the CD-1 zone must be reviewed for geologic hazards. If hazards are suspected, the developer must submit a report evaluating “the degree of hazard present and recommend[ing] appropriate precautions to avoid endangering life and property and minimize erosion . . . to show that it is safe to build.” Although intervenor submitted a geotechnical report with their application, the planning commission imposed a condition requiring intervenor to submit a hydrology report examining groundwater impacts and mitigation efforts. Concluding the application already contained the information needed to conclude the project was “safe to build,” the city council removed the condition. In the second assignment of error, petitioners argue the city council’s findings are inadequate because they do not explain why the city council concluded the hydrology report was not necessary. Because staff reports adopted by the city council included a summary of testimony from intervenor’s experts explaining that the hotel would cause no disruption of groundwater flow or significant bluff erosion, and because the city council was not required to explain why it reached a different conclusion than the planning commission given those findings, the second assignment of error is denied.

Under BMC 17.92.040(E), sites must be suitable for proposed conditional uses considering size, shape, location, topography, and natural features. Under BMC 17.20.010, the purpose of the CD-1 zone is to permit a mix of uses, including residential, tourist commercial, and recreational. In approving the CUP, the city council incorporated findings from the staff report that the site was suitable because the application was for a hotel, which is a tourist commercial use. In the fourth assignment of error, petitioners argue the city erred in concluding the site was suitable because intervenor’s geotechnical report was flawed. Because petitioners failed to challenge the above findings in their local appeal statement, and because any reliance on the geotechnical report to determine suitability was based on the credibility of intervenor’s experts, LUBA concludes the city did not err. The fourth assignment of error is denied, and the city’s decision is AFFIRMED.