Legacy Development Group, Inc. v. City of The Dalles

Petitioner applied for a subdivision. Under ORS 197.307(4), local governments “may adopt and apply only clear and objective standards” to the development of housing. Under ORS 197.831, the local government bears the burden of demonstrating that its approval standards “are capable of being imposed only in a clear and objective manner.” The city denied the application. This appeal followed.

Under The Dalles Municipal Code (TDMC) 10.10.060(A)(1), petitioner was required to submit a traffic impact study (TIS). Under TDMC 10.10.060(A)(3)(a), a TIS must “reflect the magnitude of the project in accordance with accepted traffic engineering practices. Projects should assess all nearby key intersections.” Under TDMC 10.10.060(A)(5)(a), the city may “deny, approve, or approve a proposal with conditions necessary to meet operational and safety standards; provide the necessary right-of-way for improvements; and to require construction of improvements to ensure consistency with the future planned transportation system.” Because petitioner’s TIS did not evaluate a particular nearby intersection that the city considered to be a “key intersection,” the city concluded that TDMC 10.10.060(A)(3)(a) and (5)(a) were not met. Petitioner argued that the city was prohibited from applying TDMC 10.10.060(A)(3)(a) and (5)(a) to its application because those provisions were not clear and objective. Because “magnitude of the project,” “nearby key intersections,” “accepted traffic engineering practices,” “necessary to meet operational and safety standards,” and “ensure consistency with the future planned transportation system” could not be determined by reference to objective metrics in the TDMC and instead required subjective, value-laden analyses to determine, LUBA agreed with petitioner that TDMC 10.10.060(A)(3)(a) and (5)(a) were not clear and objective.

Intervenors argued that Oregon Department of Transportation (ODOT) Critical Crash Rate standards supplied clear and objective standards for evaluating TISs and that, even if those standards were not clear and objective, the clear and objective requirement only applies to standards that local governments themselves adopt. LUBA first noted that ORS 197.307(4) expressly requires local governments to “apply” only clear and objective standards to housing and does not limit its application to those standards adopted by the local government. However, LUBA concluded that it did not need to decide whether ODOT Critical Crash Rate standards were clear and objective because nothing in TDMC 10.10.060(A)(3)(a) referred to those standards or clearly incorporated them. Thus, TDMC 10.10.060(A)(3)(a) remained not clear and objective.

Under TDMC 10.10.060(A)(5)(b), “[c]onstruction of off-site improvements may be required to mitigate impacts resulting from development that relate to capacity deficiencies and public safety; and/or to upgrade or construct public facilities to City standards.” Because petitioner’s TIS did not evaluate the same “key intersection” discussed above, the city concluded that it was unable to determine whether any impacts to that intersection required mitigation and that TDMC 10.10.060(A)(5)(b) was not met. Petitioner argued that the city was prohibited from applying TDMC 10.10.060(A)(5)(b) to its application because that provision was not clear and objective. Because “capacity deficiencies” and “public safety” were undefined, general concepts that required subjective analyses to determine, LUBA agreed with petitioner that TDMC 10.10.060(A)(5)(b) was not clear and objective.

Under TDMC 10.10.040(E), the city may require “off-site pedestrian facility improvements” in order to “ensure improved access between a development site and an existing developed facility such as a commercial center, school, park, or trail system.” Based on opponents’ testimony, the city concluded that new sidewalks were needed to connect the subject property to areas with existing sidewalks in order to improve pedestrian safety. Because petitioner’s application did not propose such sidewalks, the city concluded that TDMC 10.10.040(E) was not met. Petitioner argued that the city was prohibited from applying TDMC 10.10.060(A)(5)(b) to its application because that provision was not clear and objective. Intervenors argued that TDMC 10.10.060(A)(5)(b) implemented OAR 660-012-0045(3), and the city was therefore required to apply that provision. Because TDMC 10.10.060(A)(5)(b) requires off-site improvements, whereas OAR 660-012-0045(3) requires on-site improvements, LUBA concluded that the former did not implement the latter. In turn, because determining whether the phrase “off-site pedestrian facility improvements” in TDMC 10.10.060(A)(5)(b) refers to sidewalks, crosswalks, or trails requires subjective value judgments, and because the city interpreted that provision to relate to safety even though it does not use the word “safety” at all, LUBA concluded that that provision was not clear and objective.

Under TDMC 10.10.040(B), “[s]afe and convenient pedestrian facilities that strive to minimize travel distance to the greatest extent practicable shall be provided in conjunction with new development.” Under TDMC 10.10.040(B)(1), “safe and convenient” means “reasonably free from hazards which would interfere with or discourage pedestrian travel.” Because petitioner’s application did not acknowledge pedestrian safety issues in the area or propose improvements to provide safe pedestrian connections, the city concluded that TDMC 10.10.040(B) was not met. Petitioner argued that the city was prohibited from applying TDMC 10.10.040(B) to its application because that provision was not clear and objective. Agreeing with petitioner, LUBA stated that it was “hard to imagine” a standard using the phrases “strive to minimize,” “to the greatest extent practicable,” “reasonably free from,” or “interfere with or discourage” that would not require a subjective, value-laden analysis to determine whether it was met. That TDMC 10.10.040(B)(1) defined “safe and convenient” did not matter, since that definition was itself not clear and objective.

Because the city was prohibited by ORS 197.307(4) from applying any of the TDMC provisions that furnished its bases for denial, the city’s decision was REVERSED. Because the city’s decision was “outside the range of discretion allowed [it] under its comprehensive plan and implementing ordinances,” the city was ordered to approve the application pursuant to ORS 197.835(10)(a).