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Kine v. City of Bend: A Message That Oregon’s Cities May Want to Revamp Comprehensive Plan Policies to Allow for Affordable Housing

ThornhillThe City of Bend is in dire need of more housing at all income levels, particularly affordable housing. In a November 2015 presentation to the Housing Land Advocates, Jim Long, the City’s  Affordable Housing Manager, reported that the housing market is so tight in Bend that he receives calls from hospitals looking for homes for new doctors, in addition to the low income population his office is meant to serve. Despite the demand for affordable housing, the case of Kine v. City of Bend (LUBA No. 2015-068, December 24, 2015) represents how difficult it is to increase the supply within city limits.

In this case, the City attempted to re-designate 5.36 acres of surplus land it owned from a single family residential zone with a public facilities comprehensive plan designation to a residential medium density plan and zone designation. The plan and zone change would allow the City to sell the property to a low income housing developer to help meet what the City said was a pressing demand for more affordable housing. The City cited reports concerning the lack of affordable housing in Bend and rental vacancy rates below 1%. The petitioner, Kine, who is a private developer of single-family housing, sought to invalidate the approved zone change because it was inconsistent with the City’s Comprehensive Plan policies. The Land Use Board of Appeals (LUBA) agreed with Kine because the City’s findings had not adequately addressed policies related to:

  • access, commercial services, and employment;
  • compact development and integration of land uses within the urban growth boundary to reduce trips;
  • how densities recommended in the Comprehensive Plan maintain the proper relationships between proposed public facilities and services and population distribution; and
  • how the future development will respect the character of the existing areas.

The City argued that its findings were adequate for review because the City Council had made an “implied interpretation” that was adequate for review. However, LUBA disagreed because for an implied interpretation to be adequate for review, the findings embodying that interpretation must carry with it only one possible meaning of the ordinance provision and an easily inferred explanation of that meaning. In this case, the City’s findings were neither deep nor meaningful, but rather short and lacked substantial evidence in the record to support the findings. For examples the findings in relation to the first bullet point above (access and employment) state,

“The subject property is situated near a minor arterial and a planned princip[al] arterial, and is adjacent to a commercial node and a public park. Pursuant to this section, the property is therefore located in an area where RM zoned properties should be located. The proposed amendment will therefore be consistent with this policy.”

LUBA concluded that the City had not demonstrated that its findings embody an implicit interpretation that carries with it only one possible meaning and an easily inferred explanation of that meaning, or that it embodies any interpretation at all. Rather, the findings lacked any explanation or evidence of what kind of jobs are provided in the commercial node and how access would be achieved. The same deficiencies were true of the findings for the remainder of the bullet points. LUBA remanded the case.

While the City may be able to address these items on remand, and draft acceptable findings, or impose reasonable conditions of approval, the decision also highlights that it might be time for cities to think outside of the box when higher densities are sought within the urban growth boundary. Cities may want to reconsider comprehensive plan policies for proposals that help meet Goal 10’s needed housing requirements, and would help to spread affordable housing opportunities throughout its boundary.

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We regularly update clients about changes in real estate law and on industry trends. This includes briefing clients on legislative proposals in the federal tax, housing and other legal areas affecting their businesses. Staying current enables you to anticipate and prevent legal problems as well as capitalize on new developments.
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