Diephuis v. City of Beaverton

In 2018, the city approved intervenor’s application to construct a cell tower with a setback variance. In 2020, intervenor applied for one-year extensions of those approvals. Under Beaverton Development Code (BDC) 50.93(6)(A), an extension can be approved if, among other things, “[i]t is not practicable to commence development within the time allowed for reasons beyond the reasonable control of the applicant.” Intervenor argued that its regional office was unable to commence development in time because intervenor was a nationwide company in which funds were allocated by national management on a regional basis and, although national management had projected that funds would be available for the cell tower in 2017, national management subsequently repurposed those funds for use in other regions. The planning commission concluded that BDC 50.93(6)(A) was satisfied and approved the applications. This appeal followed.

Petitioners argued that the planning commission misconstrued BDC 50.93(6)(A). Applying dictionary definitions, as required by BDC 10.20(6), LUBA concluded that intervenor’s regional offices and national management were part of the same legal entity and therefore the same “applicant.” Because intervenor’s national management had the power to allocate the funds to construct the cell tower, intervenor’s failure to commence development within the time allowed was not “beyond the reasonable control of the applicant.” Citing Bard v. Lane County, LUBA concluded that, while a decision to reallocate resources alone does not make a failure to commence development beyond an applicant’s control, such a decision might be beyond an applicant’s control when combined with economic forces. Because it was possible for intervenor to submit additional evidence indicating that national management’s decision was due to external factors, the city’s decision was REMANDED.