Beaverton Business Owners, LLC v. City of Beaverton

The city approved a planned unit development (PUD) in 2013. Under Beaverton Development Code (BDC) 50.90(4)(B)(2), PUD approvals expire in two years unless (1) a construction permit has been issued and substantial construction has taken place or (2) an extension application has been filed. The 2013 PUD was extended twice. In 2019, the planning commission approved both a conditional use permit (CUP) and design review for a parking lot on a portion of the PUD and the city issued a building permit to construct the foundation of a guard station, which intervenor did. Later in 2019, intervenor applied for a director’s interpretation to determine whether the construction of the guard station foundation was sufficient to prevent the PUD from expiring under BDC 50.90(4)(B)(2). The planning director determined that it was, petitioner appealed that decision to the city council, and the city council affirmed the planning director’s decision. This appeal followed.

In approving the parking lot CUP, the planning commission imposed a condition providing that the CUP would expire in 5 years if there was not an active land use entitlement to build a certain square footage of non-residential floor area or a certain number of residential units on the subject property. Under BDC chapter 90, “substantial construction” means “construction of footings for the building where the principal use will take place.” Because the CUP condition and the planning commission’s findings in approving the CUP indicated that the parking lot use was temporary, petitioner argued that the parking lot was not the “principal use” of the subject property and that, therefore, construction of the guard station foundation could not constitute “substantial construction.” The city council found that whether a use is permanent has nothing to do with whether it is “principal.” Because petitioner did not demonstrate that that interpretation was inconsistent with the express language of the BDC, LUBA deferred to it.

Petitioner also argued that, even if the parking lot were a principal use, because the guard station was not the “building where the principal use will take place,” construction of the guard station foundation could not constitute “substantial construction.” The city council found that, because the planning commission did not approve the guard station under criteria different from the parking lot (i.e., accessory use criteria), the guard station was part of the parking lot. In turn, because the parking lot was the principal use, the guard station was part of the principal use. Because petitioner did not explain why the city council’s interpretations of the BDC were inconsistent with any of its express language or underlying policy or why the city council’s interpretations of the planning commission’s decision were erroneous, petitioner’s arguments provided no basis for reversal or remand. The city’s decision was therefore AFFIRMED.