Housing Land Advocates (HLA) recently filed an appeal in the Land Use Board of Appeals (LUBA) against the City of Happy Valley in opposition to a comprehensive plan amendment and zone change. The application requested a downzone from multi-family to a single-family residential zone and approval of a 31-lot subdivision. The substantive issue in the case is whether the City made adequate Goal 10 findings related to the availability of land for affordable housing with the City (no such findings were made by the Planning Commission). The City of Happy Valley filed a Motion to Dismiss claiming that HLA did not exhaust its local appeal remedies prior to filing the appeal. However, HLA had submitted a detailed letter explaining that no local appeal was required for a comprehensive plan amendment because state law requires the local governing body – in this case the City Council – to make a final decision. HLA declined the City’s offer to pay a $1000 appeal fee and $2500 deposit for the City’s attorney’s fees to appeal the Planning Commission’s decision to the City Council. The City Council did not respond to HLA’s letter and the LUBA appeal followed.
HLA succeeded in defeating the Motion to Dismiss. LUBA’s Order relied on the statutory requirement in ORS 197.010 that a comprehensive plan must be adopted by the government body. Under state statute, the comprehensive plan includes the land use map. The City has a single map that serves as both its comprehensive plan and its development district map. The approved amendment to downzone the property from multi-family to single family residential amended both Local Development Code and the Happy Valley Comprehensive Plan.
Although the City tried to characterize its decision as a quasi-judicial decision that did not require City Council approval under the City Code, LUBA found that the distinction between quasi-judicial and legislative decision making did not matter when an amendment to the comprehensive plan is at issue. LUBA relied on a Court of Appeals decision from 1986 to support its decision – Colwell v. Washington County. In Colwell, the petitioners missed a deadline to submit a transcript fee which resulted in dismissal of their appeal of a local decision that amended the county’s comprehensive plan. The petitioners appealed to LUBA and the Court of Appeals claiming that the amendment of a comprehensive plan did not require a local appeal.
The Court pointed out that a land use decision may require both quasi-judicial procedures and legislative action. In Colwell, the relevant statutes require that all comprehensive plan amendments must be adopted by the county. The Court cited to statutes that govern county decision-making in ORS Ch. 215, as well as those that govern city decision making under ORS 197.010. Specifically, the Court found that requiring the petitioners in that case to pursue county remedies that they did not exhaust could have achieved nothing except convince the governing body to do what was required under state statute. The same issue was at play in HLA, only in the form of the appeal fee.
LUBA further relied on ORS 227.090 which sets out the powers of city planning commissions and authorizes city planning commissions to “recommend and make suggestions to the [city] council and other public authorities concerning” land use regulations and plans. But, that same statute does not authorize planning commissions to amend the comprehensive plan. Further, ORS 227.180(1)(b) may allow city councils to delegate decision making authority for final zoning map amendments, but does not authorize city councils to delegate final decision making regarding applications for comprehensive plan amendments. Moreover, Statewide Planning Goal 2 requires that all land use plans and implementation ordinances shall be adopted by the governing body.
As a result of the Order, it is no surprise that on June 6, 2016, the City decided to withdraw its Planning Commission decision for the purpose of reconsidering it which is allowed in certain circumstances under state law. This case is a message to local governments that high appeal fees cannot be used as a way to sidestep making comprehensive plan amendment decisions that include findings on all the Statewide Planning Goals, including Goal 10. This case will continue at the City Council level.
Disclosure: Jennifer Bragar is the President of Housing Land Advocates. Housing Land Advocates was represented before LUBA by pro bono counsel, Rebekah Dohrman.
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