East Park, LLC v. City of Salem

1. Local criteria utilizing subjective and value-laden judgments do not satisfy the requirement of clear and objective procedures under ORS 197.307(4). 2. Even if an alternative approval process is available under ORS 197.307(6), it may not be utilized in a local government decision unless the applicant has an option to pursue their application under ORS 197.307(4) with clear and objective criteria.

Petitioner’s application for a conditional use permit (CUP) for a 291-unit apartment complex was denied by the city council.  

In their second assignment of error, Petitioner argued that the City’s CUP criteria should not have been applied to their application because the local criteria were not “clear and objective.” ORS 197.307(4) provides that a “local government may adopt and apply only clear and objective procedures regulating the development of housing.” The Salem Revised Code (SRC) sets out CUP criteria in SRC 240.005(d), requiring that “[t]he reasonably likely adverse impacts of the use on the immediate neighborhood can be minimized through the imposition of conditions,” and “[t]he proposed use will be reasonably compatible with and have minimal impact on the livability or appropriate development of surrounding property.” LUBA agreed with Petitioner that the SRC CUP criteria involve subjective, value-laden judgments inconsistent with ORS 197.307(4). LUBA sustained the second assignment of error.

In their third assignment of error, Petitioner argued the city council misconstrued ORS 197.307(6) to find that Petitioner could rezone the property to avoid requesting a CUP. ORS 197.307(6) provides that in addition to the approval process outlined in ORS 197.306(4), “a local government may adopt and apply an alternative approval process for applications and permits for residential development based on approval criteria” which are not clear and objective as long as “[t]he applicant retains the option of proceeding under the approval process that meets the requirements of subsection (4).” LUBA held that even if Petitioner could use “an alternative path under subsection (6),” such as rezoning the property, the City is still required to provide applicants with a path complying with subsection (4) using “clear and objective” standards. LUBA reasoned that the relevant SRC criteria were not clear and objective, therefore the City could not require an alternative approval process under subsection (6). LUBA sustained the third assignment of error.

LUBA did not reach the first assignment of error.

LUBA reversed the City’s decision is reversed and ordered it to approve the application.