Oregon Coast Alliance v. City of Wheeler

Intervenor applied for conditional use permits (CUPs) to develop (1) a hotel and (2) a commercial seafood sales/restaurant/housing building. The city council approved both applications. This appeal followed.

Under Wheeler Zoning Ordinance (WZO) 15.020, conditional uses must be “in conformity with the comprehensive plan.” The 2011 Wheeler Vision Plan, a background report to the Wheeler Comprehensive Plan, included a list of six “rank ordered” priorities, including protecting the natural beauty, preserving the small town atmosphere, keeping the town safe and functional, etc. In the first assignment of error, petitioner argued that the city council’s findings of compliance with WZO 15.020 were inadequate because the findings did not address compliance with all of the priorities in the Vision Plan. Respondents argued that the Vision Plan did not require a “check the box” approach addressing all of the priorities. Because that interpretation was neither included in nor implied by the findings themselves, LUBA agreed with petitioner that the findings were inadequate. The first assignment of error was therefore sustained.

In the second assignment of error, petitioner challenged the county’s conclusions that the CUP standards at WZO 15.090 were satisfied. Under WZO 15.090(1), a “need” must exist for a conditional use “at the proposed location.” The city council concluded that a “need” existed for the hotel and commercial seafood sales/restaurant/housing building because they would generate tax revenue for the city, which would provide funding for public improvements identified in the Vision Plan. Petitioner argued that the city improperly construed WZO 15.090(1) by not interpreting the word “need” according to its dictionary definition Because no provision in the WZO required the city to interpret the word “need” according to its dictionary definition, LUBA agreed with respondents that the city council’s interpretation was not inconsistent with the express language of WZO 15.090(1), and LUBA affirmed that interpretation under ORS 197.829(1) and Siporen v. City of Medford. Petitioner also argued that there was no “need” for the proposed conditional uses because there would not be enough business for them. Because a local visitors association and a hotel developer testified that additional dining and lodging would be needed, LUBA concluded that a reasonable person could rely on that testimony, even though it was not related specifically to the city at issue. This subassignment of error was denied.

Under WZO 15.090(2), conditional uses must not “overburden” public facilities and services. The city council found that the applications would “not overburden public facilities and services, with the exception of obtaining final approval from the” local water agency. The city council therefore imposed a condition of approval requiring intervenor to satisfy any of the local water agency’s concerns. Petitioner argued that the city council unlawfully imposed a condition to satisfy WZO 15.090(2) without simultaneously determining that that satisfaction was “feasible.” Because the city council actually concluded that intervenor had already satisfied WZO 15.090(2), and because the condition of approval was simply a recognition that intervenor would have to comply with the local water agency’s regulations in any event, LUBA denied the subassignment of error.

Under WZO 15.090(4), “[t]he topography, soils, and other physical characteristics of the site [must be] appropriate” for the proposed conditional use. Petitioner argued that the city council’s conclusion that WZO 15.090(4) was satisfied was not supported by substantial evidence because the city council relied on a 2020 geotechnical report which in turn relied on a 2006 geotechnical report for the same property which (1) was for a different proposal, (2) did not analyze building loads, (3) was prepared based on a prior version of the state structural specialty code, and (4) evaluated only part of the subject property. Despite those facts, LUBA agreed with respondents that a reasonable person could rely on the reports to conclude that WZO 15.090(4) was met. Because those reports constituted substantial evidence themselves, LUBA concluded that it did not matter that the 2020 report was preliminary and that the city council would review a final report in a non-public proceeding. This subassignment of error was therefore denied.

Under WZO 15.090(5), conditional uses must not “create traffic congestion on nearby streets.” The city council concluded that WZO 15.090(5) was met because intervenor provided a traffic study concluding that, while the proposed conditional uses would generate trips, a dedicated left-hand turn lane into the subject property was not necessary because no crashes had been reported there, because the speed limit was low, because the number of trips expected to turn left into the subject property was low, and because there were no other left-turn lanes on that road in the city. Because that evidence demonstrated that traffic would operate safely, rather than demonstrating that there would be no traffic congestion, LUBA agreed with petitioner that the city council’s conclusion that WZO 15.090(5) was met was not based on substantial evidence. The second assignment of error was therefore sustained, in part, and the city’s decision was REMANDED.