Simons Investment Properties, LLC v. City of Eugene

Where a local government determines, in applying a particular zone to property, that that property meets certain applicable criteria for the zone, it need not revisit that determination in considering subsequent applications to remove that zone from the property.

In 1978, the city adopted the Whiteaker Plan, a refinement plan that applies to the subject properties. In 1994, the city created the Whiteaker Mixed Use (MU-W) zone, applied a Site Review (SR) subdistrict zone to the MU-W zone, and rezoned the subject properties MU-W/SR. In 2002, the city repealed the ordinance which created the MU-W zone, reclassified the MU-W zone as the Whiteaker Special (S-W) zone, and established the Site Review (/SR) overlay zone. Petitioners applied for a zone change to remove the /SR overlay zone from the subject properties. The city denied the application and petitioners appealed to LUBA.

In the first assignment of error, petitioners argued the city misconstrued applicable law in concluding that the /SR overlay applies to the subject properties. In the second assignment of error, petitioners argued in the alternative that the city improperly construed the standards that apply to a zone change application. Because LUBA sustained first assignment of error, concluding that the /SR overlay did not apply to the subject properties, it did not reach the second assignment of error. The city appealed to the Court of Appeals which, concluding that the /SR overlay does apply to the subject properties, reversed and remanded for LUBA to address the second assignment of error.

Under Eugene Code (EC) 9.8865(2), zone changes must be “consistent with applicable adopted refinement plans.” Under Whiteaker Plan Policy 2, properties must be subject to the /SR overlay if they “have the most significant potential for compatibility issues.” Petitioners argue that the city was required and failed to find that this was the case in denying their application. LUBA agrees with the city that the city made this determination in 1994 when it rezoned the subject properties MU-W/SR, and that it was not required to do so again in considering petitioners’ application. The second assignment of error is therefore denied, and the city’s decision is AFFIRMED.