Nieto v. City of Talent

Petitioners applied for a subdivision. Under Talent Municipal Code (TMC) 17.10.060(F), “[w]hen vehicle access is required for development, access shall be provided” by one of a list of methods. Under TMC 17.10.060(F)(3), one of those methods is that “[a]ccess is from a public street adjacent to the development parcel.” Because each lot within the proposed subdivision would have fronted and taken access from a proposed public street, the planning department concluded that TMC 17.10.060(F)(3) was satisfied. Because, in order to access the subject property, petitioners would have been required to upgrade a railroad crossing to a public crossing, obtain a rail-crossing permit from the Oregon Department of Transportation, obtain a public right-of-way from the railroad company, and obtain related funding, but because petitioners did not provide detailed proposals regarding those things in the application, the hearings officer concluded on appeal that petitioner’s application did not satisfy any of the methods under TMC 17.10.060(F). The city denied the application and this appeal followed.

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.” Because the planning department interpreted TMC 17.10.060(F) as requiring access within the subdivision, while the hearings officer interpreted that provision as requiring access to and from the subdivision, and because that provision does not specify the timing of when such access must be provided, petitioner argued that that provision was not “clear and objective” and the city therefore could not apply it to the application. Because the purpose of TMC 17.10.060(F) was not clear from its plain text, because that provision was subject to multiple interpretations, because those aspects allowed the hearings officer to exercise significant subjectivity in choosing their preferred interpretation, and because their interpretation was designed to balance the impacts from the subdivision on the subject property, adjoining properties, and the community, LUBA agreed with petitioners that that provision was not “clear and objective.” Because the city was prohibited by ORS 197.307(4) from applying that provision to the application, and because that provision furnished the city’s only basis 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,” and the city was ordered to approve the application pursuant to ORS 197.835(10)(a).