Husk v. City of Bend

Where applicable, a local government must consider the implementation of ORS 197.758, the “middle housing statute,” when evaluating code compliance of an applicant’s proposed subdivision of single-family homes.

Petitioner appealed the City’s approval of Intervenor’s 26-lot subdivision plan and waiver of public improvement standards for a partial street improvement. On appeal, Petitioner made five assignments of error, the first two of which LUBA primarily focused on: 1) in granting the waiver, the City improperly evaluated the impacts of the proposed development rather than the impacts of the waiver itself, and 2) that the City had insufficient evidence of Intervenor’s compliance with fire, water, and sewer codes and traffic impacts because ORS 197.758 allowed “middle housing” on all residential zones, and Intervenor’s application materials demonstrated compliance for only the proposed 26 single-family dwellings, not the 104 dwellings that the subdivision could potentially hold under ORS 197.758. In response, Intervenor argued 1) the first assignment of error was waived because Petitioner had not preserved the argument below, and 2) that ORS 227.173(1) did not allow the City to consider ORS 197.758 in reviewing the application, and that the City’s residential density standards prevented more than 36 dwellings from being constructed in the area.

To demonstrate an argument was raised below, it is not necessary to show the exact argument was made, but there must be more than “general references” to applicable criteria that were raised below. Reagan v. City of Oregon City, 39 Or. LUBA 672, 690 (2001). Passing references to an argument are not enough. DLCD v. Coos County, 25 Or. LUBA 158, 167-68 (1993). The issue must be identified with enough detail to provide notice to the decision-maker and parties and give them an opportunity to respond to avoid “unfair surprise.” Boldt v. Clackamas County, 107 Or. App. 619, 623 (1991).

As to the first assignment of error, LUBA found that Petitioner had not properly raised the issue below in their letters to the City regarding the decision because they only made passing references to their arguments, which was insufficient to provide the City an opportunity to respond. LUBA also noted that the argument Petitioner now made—that the effects of Intervenor not doing something was the proper analysis for evaluating a waiver request—was the opposite of the one they had made in the letters, where Petitioner argued the proposed development was what would cause the harm and had to be assessed. LUBA concluded Petitioner’s attempt to take an opposite argument on appeal was an “unfair surprise” and thus the issue was waived.

House Bill 2001 provides a subdivision restricted to single-family housing is no longer enforceable and enacts ORS 197.758 to carry out this goal. Or. Laws 2019, ch. 639, § 2. Under ORS 197.758, all residential zones in cities with populations over 25,000 must allow “middle housing” on lots for single-family housing, including duplexes, triplexes, quadplexes, townhomes, and cottage clusters.

Addressing Intervenor’s first claim that ORS 227.173(1) prevented consideration of the middle housing statute, LUBA pointed out ORS 227.173(1) applied to permits, not limited land use decisions, and was inapplicable here. As to Intervenor’s density argument, LUBA noted the City’s code had been amended to except the middle housing types from the density requirements, and these middle housing types could be allowed at the site. LUBA agreed with Petitioners that if ORS 197.758 was applicable the City was required to consider the impact of the 104 potential dwellings on the site when evaluating Intervenor’s plan. However, LUBA noted that House Bill 2001 gave an implementation deadline of June 30, 2022, and if a city had failed to adopt its own means of implementation by then, the Land Conservation Development Commission (LCDC) model ordinance would be used. While that deadline had passed, neither Petitioners nor Intervenor mentioned the City’s implementation of the statute in their arguments or whether the City had requested an extension of the deadline, and the City’s findings had not considered how its implementation—or the LCDC model ordinance, if the City had not created one of their own—would affect the Intervenor’s submitted evidence of compliance. As there was no determination of the applicability of the statute, LUBA concluded remand was necessary for the City to address these questions.

Remanded.