Woodburn Petroleum v. City of Woodburn

Where an applicant for a conditional use permit consolidates their submission with other land use applications for the subject property and treats all applications as one project, a local government does not err in applying conditional use permit criteria to the other applications or in denying the other applications if the conditional use permit is denied.

Petitioners appealed the City’s denial of an application for a conditional use permit (CUP) to operate a gas station on one of two neighboring properties. Petitioners proposed to develop a commercial office building and gas station on one property and a convenience store/office on the other. Petitioners submitted consolidated applications for a phasing plan, design review, street exception, and CUP as required for different parts of the proposal. Only the gas station required a CUP. City code provided that if an applicant requested their applications be consolidated, the applications would be “processed following the procedures applicable for the highest type decision requested.” The City found the gas station would present too many conflicts with the surrounding areas and denied all of Petitioners’ applications with the CUP.

On appeal, Petitioner made two assignments of error, the first with multiple subassignments: 1) the City misapplied multiple provisions of the local ordinance and made inadequate findings, and the City’s decision was not supported by substantial evidence, and 2) that the City erred in denying all of Petitioner’s applications rather than only denying the CUP.

Under ORS 197.835(9)(a)(D), LUBA “will reverse or remand a local government decision if the local government improperly construed the applicable law.” “[U]nder ORS 197.829(1), LUBA is required to defer to a local government's interpretation of its land use regulations unless the interpretation is inconsistent with the express text of the regulation, the purpose of the regulation, the underlying policy implemented by the regulation, or a state law that the regulation carries out." Kaplowitz v. Lane County, 285 Or. App. 764, 773 (2017).

Under their first assignment of error, Petitioners argued the City improperly applied its CUP criteria to parts of Petitioners’ applications that did not involve the gas station. LUBA reasoned the issue had not been preserved below because Petitioners were “on notice” that the City was applying the CUP criteria to the other applications, and Petitioners had failed to object. Petitioners also argued the City misinterpreted the CUP provisions as having greater requirements than those contemplated under the code. LUBA, however, found the City’s interpretations of the scope of the provisions, which were plausible and had textual support, required deference. Petitioners further argued language in the purpose statement for the CUP provisions required the City to impose conditions to mitigate impacts, which the City failed to do. LUBA noted that not only did Petitioners not explain why the purpose statement was controlling, the language was permissive rather than mandatory, and nothing else in the code indicated the City was required to impose conditions. LUBA also found the City made adequate findings in considering the surrounding uses and testimony regarding the potential hazards posed by the gas station, and these constituted substantial evidence for the City’s decision to deny the CUP. Accordingly, LUBA denied the first assignment of error.

LUBA also denied the second assignment of error, finding that Petitioners had referred to all the applications together as “one project,” and the application materials had been structured as one project. As this consolidation did not allow the City to separately consider Petitioners’ other applications, LUBA concluded the City had not erred in denying all applications with the CUP rather than adopting separate findings for each application and denying only the CUP.

Affirmed.