Easterly v. City of Salem

Background:

The city’s 2020 Transportation System Plan (TSP) classifies streets as local, collector, or arterial, each serving different transportation functions. Local streets primarily provide property access, collectors connect neighborhoods to arterials, and arterials serve high-capacity, high-speed travel within and between cities. The TSP also lists “low priority new streets and extensions” to be developed in the future, including Project 166 – the Colorado Drive NW Extension. As originally described in the 2020 TSP, Project 166 would create a loop road connecting back to Orchard Heights Road NW and potentially including Landaggard Drive NW. It was designated as a new collector street. The appealed Ordinance modifies Project 166. Instead of looping back to Orchard Heights Road NW, the new plan extends Colorado Drive NW to Doaks Ferry Road NW, forming a direct collector connection and removing Landaggard Drive NW from the collector system. This change aligns with the 2023 Titan Hill Development Approval, under which the developer (Titan Hill Property LLC) will build the Colorado Drive NW extension. City staff explained that this eliminates the need for Landaggard Drive NW to function as a collector, allowing it to be reclassified as a local street, consistent with its current use. The city council held public hearings in October and November 2023 and ultimately adopted the Ordinance, prompting the present appeal challenging that decision.

First Assignment of Error:

Under SRC 64.020(a), comprehensive plan amendments are classified as either major or minor. The city council treated the challenged Ordinance as a minor comprehensive plan amendment. The petitioner, however, argues that the decision should be remanded so the city can instead process it as a major amendment and make findings addressing the significant transportation impacts of the Colorado Drive NW extension identified in the TSP.

SRC 64.020(b):

Under SRC 64.020(b), a major comprehensive plan amendment is one that creates, revises, or implements broad public policy affecting multiple property owners or many properties. The petitioner argued that the Ordinance should have been processed as a major rather than minor amendment because it affects 22 properties along Landaggard Road and allegedly fails to implement a transportation policy in the TSP. Respondents countered that the petitioner’s claim was a procedural error under ORS 197.835(9)(a)(B) and should have been raised during city proceedings. However, LUBA found that the petitioner did not allege a procedural violation, since both major and minor amendments are processed under the same legislative procedures (SRC 64.020(d)), and there was no procedural difference relevant to the case. Instead, LUBA treated the argument as a claim that the city misconstrued SRC 64.020(b). LUBA held that the petitioner’s assertion that 22 properties were affected did not demonstrate that the Ordinance involved broad public policy, as required by the rule. The Board declined to develop that argument on petitioner’s behalf. Moreover, LUBA determined that any misclassification was harmless error, because the criteria for minor amendments include the same key requirements as those for major amendments. LUBA denied this subassignment of error, concluding that the city’s treatment of the Ordinance as a minor comprehensive plan amendment did not prejudice petitioner’s rights.

SRC 64.020(f)(2)(C):

Under SRC 64.020(f)(2)(C), a minor comprehensive plan amendment must not require significant factual or policy analysis. The petitioner argued that the city council’s finding that this standard was met was unsupported by evidence. The city council found that the Colorado Drive NW extension to Doaks Ferry Road NW would serve the same function as the originally planned loop connection through Landaggard Drive NW, and that the amendment would support multimodal travel and local connectivity. Based on those findings, the council concluded that no significant analysis was needed. LUBA reviewed the record under the substantial evidence/adequate factual base standard required by Statewide Planning Goal 2 and ORS 197.835(9)(a)(C). The petitioner claimed the city misinterpreted the TSP, arguing that Landaggard Drive was not a true collector and that certain TSP policies had not been implemented. Respondents countered that the city’s findings were supported by the record. LUBA agreed with the respondents, finding that the 2020 TSP maps show both Colorado Drive NW and Landaggard Drive as collectors, consistent with the city’s conclusion. The Board held that Landaggard Drive’s current local use does not conflict with its planned collector classification and that a reasonable person could rely on the evidence supporting the city’s findings. LUBA determined the Ordinance was supported by an adequate factual base and did not require significant factual or policy analysis, as required by SRC 64.020(f)(2)(C). This subassignment of error and the first assignment of error are denied.

Second Assignment of Error:

Under SRC 64.020(f)(2)(C), a minor comprehensive plan amendment must not require significant factual or policy analysis. The petitioner’s second assignment of error argued that the city council’s finding under this criterion lacked substantial evidence. Specifically, the petitioner contended that the city could not rely on its prior approval in the 2023 Titan Hill Development Approval, which allowed the Colorado Drive NW collector street to exceed the usual 8% grade limit (up to 12%), and that the city failed to justify the legality of that prior decision. LUBA rejected these arguments, agreeing with respondents that petitioner’s claims amounted to an impermissible collateral attack on the 2023 Titan Hill Development Approval, which was a final, unappealed decision. The city council’s findings in the challenged Ordinance merely referenced that earlier approval. LUBA also found that the petitioner did not address most of the city’s supporting findings, including that the new Colorado Drive alignment would perform the same function as the original project, maintain similar travel distances, and include sidewalks and bike lanes to promote multimodal travel. The second assignment of error was denied.

Third and Fifth Assignments of Error:

Under SRC 64.020(f)(2)(A), a minor comprehensive plan amendment may not significantly change or amend key principles or policies in the plan. In their third and fifth assignments of error, the petitioner argued that the city council lacked an adequate factual basis to conclude that the Ordinance met this requirement. Petitioner claimed the city only relied on TSP Policy 1.5 (regarding collector streets) and failed to consider other relevant policies, including Policies 1.2, 1.6, 2.7, and 4.4, which concern connectivity, ADA compliance, street alignment, and urban growth standards. Petitioner further argued that the Ordinance effectively “de facto” modified several transportation policies without sufficient findings. LUBA rejected these claims. It held that the key question under SRC 64.020(f)(2)(A) is whether the amendment changes or amends a plan policy, not whether it is consistent with each policy or sufficiently explains compliance. The Board found no indication that the Ordinance actually modified any plan principles or policies. Because the petitioner did not show that an applicable approval criterion was unaddressed or inadequately supported, and did not identify any factual or legal error under the proper standard, LUBA concluded there was no basis for remand. The third and fifth assignments of error were denied.

Fourth Assignment of Error: 

Under SRC 64.020(f)(2)(B), a minor comprehensive plan amendment must not require substantial changes to plan language to maintain internal consistency. The petitioner argued that the city lacked sufficient evidence to show this standard was met, claiming the amendment failed to address federal accessibility requirements under the ADA and PROWAG, and did not adequately consider the Comprehensive Plan Goal T6 (Pedestrian System Goal). However, the reviewing body agreed with the respondents that the petitioner failed to explain how the ADA or PROWAG applied to the amendment or to identify any specific inconsistencies or substantial changes needed to the plan language. The petitioner also did not address the city’s findings that the amendment complied with SRC 64.020(f)(2)(B). Additionally, arguments about pedestrian accessibility along Colorado Drive NW were deemed an improper collateral attack on prior development approvals.

Sixth and Seventh Assignments of Error: 

Under SRC 64.020(f)(2)(E), a minor comprehensive plan amendment must conform to the applicable statewide planning goals and administrative rules adopted by the Department of Land Conservation and Development (DLCD). In the sixth assignment of error, the petitioner contends that the record lacks evidence or findings demonstrating compliance with Statewide Planning Goals 5 and 6, which address the protection of natural resources, scenic and historic areas, open spaces, and the maintenance of air, water, and land quality. In the seventh assignment of error, the petitioner similarly argues that the findings fail to establish that the amendment conforms to Statewide Planning Goal 12, which governs transportation planning.

Goal 5 and 6: 

Statewide Planning Goal 5 seeks to protect natural resources and conserve scenic, historic, and open spaces, while Goal 6 aims to maintain and improve the quality of air, water, and land resources. The petitioner argued that the city council’s findings regarding compliance with these goals were unclear and insufficient. The city council found, however, that the amendment did not eliminate existing requirements for future development to comply with several SRC chapters regulating wetlands, floodplains, vegetation, stormwater, and historic preservation, which collectively ensure environmental protection. The reviewing body agreed with respondents that Goal 5 did not apply because the amendment did not affect a recognized Goal 5 resource, nor did it authorize new uses that would conflict with such resources under OAR 660-023-0250(3). Regarding Goal 6, the petitioner failed to explain why the city’s reliance on existing environmental regulations was inadequate to show compliance. Since the petitioner did not meaningfully challenge the city’s findings, the reviewing body concluded that the city properly determined that Goal 6 was satisfied. Sixth assignment of error is denied.

Goal 12: 

Statewide Planning Goal 12 aims “to provide and encourage a safe, convenient, and economic transportation system.” The city council found that the proposed amendment met Goal 12 because it qualified as an interim update under OAR 660-012-0012(2)(b) and therefore did not require full compliance with all TSP regulations. The findings further stated that the amendment includes required pedestrian and bicycle facilities and supports the collector street network, thereby conforming with Goal 12 as implemented by OAR 660-012. The petitioner argued that the city failed to make findings showing that the ordinance would not significantly affect a transportation facility under OAR 660-012-0060, contending that allowing a 12% collector street grade altered the standards implementing the TSP’s functional classification system. The respondents countered that the 12% grade had already been approved in the 2023 Titan Hill Development approval, which applied existing alternative street standards rather than changing them. The reviewing body agreed, finding that the petitioner failed to show the ordinance modified any standards in the TSP or functional classification system. The petitioner also claimed that the city’s findings inadequately addressed Transportation Plan Policy 6 and TSP Policy 1.6, but did not develop a sufficient argument explaining their relevance under Goal 12. The reviewing body therefore declined to consider those claims further. The seventh assignment of error is denied. 

Decision affirmed.