Schulke v. City of Salem

"The city council's interpretation of SRC 702.020(b)(2)(A)'s purpose of providing buffering between multi-family and single-family development through a combination of increased distance, landscaping, and screening, without regard to the purpose of a different provision in the SRC that also addresses landscaping, is plausible and consistent with the express language of SRC 250.005, which requires consideration of the 'purpose underlying the specific development standard proposed for adjustment.'"

Petitioner appeals a city council decision approving an adjustment to city 4 tree planting and fence standards for a multiple family residential complex.

The intervenor applied to develop a 405-unit, multi-family apartment complex consisting of 33 three-story buildings with open space and parking on a 15.6 acre, split-zoned parcel (Mixed Use-I and Multiple Family Residential) adjacent to Hazelgreen Road NE and Lunar Drive NE. A 125-foot-wide Bonneville Power Administration (BPA) easement with overhead transmission lines encumbers the southern portion of the site. Properties to the south, including the petitioner’s single-family residence, are zoned Single Family Residential and are also partially encumbered by the BPA easement. A proposed building would be located approximately 180 feet north of the petitioner’s dwelling.

The intervenor sought an adjustment to Salem Revised Code 702.020(b)(2)(B), which requires fencing and landscaping where multi-family developments abut single-family zones, proposing low hedges instead of a fence. The city’s planning administrator approved the adjustment, and the petitioner appealed. After a hearing, the city council denied the appeal, adopted additional findings, and imposed a condition requiring a fence along the south property line within the BPA easement, with low hedges planted in front of it. The approved development therefore includes a compliant fence and landscaping, and the petitioner subsequently appealed that decision.

First and Second Assignment of Errors

SRC 702.020(b) requires that multi-family developments with 13 or more units abutting Single Family Residential (RS) property provide a buffer consisting of landscaping and screening, including a minimum number of trees and a six-foot sight-obscuring fence. The intervenor initially sought an adjustment to both the tree-planting and fencing requirements due to a BPA transmission line easement along the south property line that prohibits tall vegetation and structures. Ultimately, the city council imposed a condition requiring a compliant fence, so no adjustment was granted to the fencing requirement; only the tree-planting requirement in SRC 702.020(b)(2)(A) was waived.

Petitioner challenged the city council’s approval of that adjustment, arguing that it failed to comply with SRC 702.020(b)(2) and improperly construed the code by eliminating required landscaping that serves both screening and aesthetic purposes. The city council found that the purpose of the standard is to provide buffering between multi-family and single-family uses, and that this purpose was equally or better met through a combination of a large setback created by the BPA easement, a required fence, and low shrubs that comply with easement restrictions.

Applying ORS 197.829, LUBA reviewed whether the city council’s interpretation of its own land use regulations was plausible, not whether it was the best interpretation. LUBA concluded that the city council’s understanding of SRC 702.020(b)(2) as focused on buffering was plausible and consistent with the code and adjustment criteria in SRC 250.005(d)(2). Because petitioner failed to show the interpretation was inconsistent with the express language or purpose of the code, the first and second assignments of error were denied.

Third Assignment of Error

Petitioner’s third assignment of error argued that the city unlawfully approved an adjustment in violation of SRC 250.005(a)(2)(E), which prohibits adjustments that modify the applicability of UDC requirements. Petitioner relied on SRC 110.060, asserting that because the BPA easement is a private restriction, the City was required to apply SRC 702.020(b)(2) without adjustment, and therefore could not waive its requirements due to the easement’s constraints.

LUBA rejected that argument. It explained that SRC 110.060 merely establishes that the UDC controls over conflicting private easements; it does not prohibit the City from approving an adjustment to a development standard. Likewise, SRC 250.005(a)(2)(E) bars adjustments that eliminate the applicability of a standard altogether, but the intervenor did not seek to avoid application of SRC 702.020(b)(2). Instead, the intervenor proposed an alternative that the City found equally or better met the standard’s buffering purpose.

LUBA also emphasized that SRC 250.005(a)(2)(J) expressly allows adjustments to Multiple Family Design Review Standards in SRC Chapter 702, directly authorizing the type of adjustment at issue. Because petitioner failed to address that provision or show it was inapplicable, the third assignment of error was denied. The City’s decision was affirmed.