Botts Marsh, LLC v. City of Wheeler

Under ORS 197.195(4), “[a]pproval or denial of a limited land use decision shall be based upon and accompanied by a brief statement that explains the criteria and standards considered relevant to the decision, states the facts relied upon in rendering the decision and explains the justification for the decision based on the criteria, standards and facts set forth.” If the local government finds the application does not comply with the applicable standards, their “findings must be sufficient to inform the applicant either what steps are necessary to obtain approval or that it is unlikely that the application will be approved. . . . The findings must provide a coherent explanation for why the city believes the proposal does not comply with the criteria.” Bridge Street Partners v. City of Lafayette, 56 Or LUBA 387, 394 (2008).

Petitioner appealed the city council’s denial of their design review application for a building on property zoned Industrial and Water Related Commercial. Petitioner made five assignments of error: 1) procedural errors by the planning commission and the city council prejudiced their right to a full and fair hearing, 2) the city council misinterpreted the applicable law by treating permissive language as mandatory and their findings inadequately explained the reasons for denial, 3) the City improperly denied the application for Petitioner’s failure to make arguments for why their designs complied when there was no requirement for argument in the provisions, 4) the City’s denial was part of a pattern of denials that created an impermissible moratorium of construction on the premises, and 5) the denial was a taking under the U.S. Constitution. In response, the City, and the Oregon Coast Alliance as intervenor, argued that 1) the city council’s de novo review eliminated any potential bias of the commission, 2) the City correctly interpreted and applied the law, 3) the evidence Petitioner submitted was incomplete and this resulted in the denial, 4) the denial is not an impermissible moratorium, and 5) the denial does not amount to a taking because design changes could allow the plans to be approved.

Under ORS 197.195(4), “[a]pproval or denial of a limited land use decision shall be based upon and accompanied by a brief statement that explains the criteria and standards considered relevant to the decision, states the facts relied upon in rendering the decision and explains the justification for the decision based on the criteria, standards and facts set forth.” If the local government finds the application does not comply with the applicable standards, their “findings must be sufficient to inform the applicant either what steps are necessary to obtain approval or that it is unlikely that the application will be approved. . . . The findings must provide a coherent explanation for why the city believes the proposal does not comply with the criteria.” Bridge Street Partners v. City of Lafayette, 56 Or LUBA 387, 394 (2008).

The Board sustained Petitioner’s second assignment of error, determining the city’s findings were inadequate to explain why Petitioner’s application was denied. By failing to explain why certain standards were adopted, what changes would satisfy those standards, or why the evidence Petitioner submitted to demonstrate compliance with the zoning provisions was insufficient, the Board found the City had left Petitioner to “guess[] under which shell lies the pea.” The Board concluded it was necessary to remand the decision for the City to clarify its findings regarding what Petitioner needed to change to gain approval. Because the decision was being remanded on other grounds, the Board determined the City had the opportunity to clarify the conflicting language of the zoning provisions before there was a determination of whether the law was misapplied. The Board denied Petitioner’s first assignment of error because the city council’s de novo review eliminated any procedural errors of the planning commission, and Petitioner failed to identify any procedures the city council violated. The Board also denied the third assignment of error because the City’s findings showed they had denied the application due to incomplete evidence in addition to the lack of supporting arguments. Finally, where the decision was being remanded for further findings, the Board found Petitioner’s fourth and fifth assignments of error were premature and could not be evaluated in the absence of the new findings of why the application was denied. Remanded.