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Inadequate Findings Delay Development

Although not identified within LUBA’s statutorily-prescribed scope of review, all decisions approving proposed development against particular criteria must include adequate findings.  As established in cases such as Fasano v. Board of County Commissioners this requirement includes (1) identification of the relevant approval standards, (2) identification of the facts relied upon, and (3) an explanation of how the facts led to the decision.  Such obligations may appear easy enough on their face but have worked to snag many decisions that otherwise would have likely been affirmed.   The effect of this extra layer of review, followed by a remand not only results in delayed development, but increases the cost to local governments defending the decision and, it must be assumed, additional development costs then passed on by developers to homeowners and businesses.  Two recent LUBA opinions illustrate the problem.

In L’Heurex v. City of Portland, a neighbor challenged an adjustment committee approval of a height adjustment to allow construction of a dwelling that will be 30-feet tall instead of the required 23-footheight.  The findings responding to the five adjustment criteria were jumbled together, making it difficult for LUBA to determine which findings responded to which criteria.  One of the adjustment criteria asks whether granting an adjustment will “equally or better meet the purpose of the regulation to be modified.”  Here, the purpose of the height limitation is to “promote a reasonable building scale and relationship of one residence to another.”  The findings failed to define the term “scale” or “building scale;” a failure in identifying and interpreting the applicable standard, step one in the process outlined above.  This left LUBA to interpret the purpose on its own, concluding that “scale” means the “size, bulk or mass of a building.”

Moving to what the City did find, the decision explains that the “additional deep front yard setbacks places the home within a reasonable relationship to other residences” and as a result, when viewed by a pedestrian, the new home would be generally the same height as the adjacent homes.  The findings go on to note that the house will “not significantly impinge on views, light and open air among all houses.”   LUBA found that the shared dwelling setbacks, the views, light and open air had nothing to do with the purpose served by the regulations which is to reduce the scale or mass of a building.  LUBA went on to clarify that the reasonable building scale language is to be evaluated against neighboring residential homes, rather than for pedestrians when viewed from the street.

Finally, there was no discussion of whether the adjacent homes satisfied the existing height limitations as setting the baseline for the appropriate height.  In a footnote, LUBA speculated that they do not.  LUBA went on to opine that “it is hard for us to see how the city could ever grant a height adjustment to allow a house that is seven feet taller than the 23-foot standard, unless there are unusual on-site or neighborhood circumstances.”  Again, giving LUBA an opening to prognosticate about the application of a relatively frequently used adjustment criteria should make future applicants’ (as well as the city) nervous because such warnings often serve as homing signals encouraging likely opponents.  This is just another unanticipated consequence of failing to take time and care with findings.

One more interesting tidbit about this case, the applicant developer did not participate in the LUBA appeal defending its approval.  Rather, the city attorney’s office expended that effort.  Certainly the city could have chosen not to participate but it did in this case.  We can only assume that those legal costs will be covered by some future increase in development application fees.  In any event, the matter was remanded for the City to adopt adequate findings explaining the decision, thereby delaying development which may otherwise have been acceptable, considering that this was a single infill home.  In contrast, consider another recent case, Shamrock Homes LLC v. City of Springfield, where an amendment affecting a 267-acre area was appealed.

In Shamrock Homes, the City of Springfield adopted a series of ordinances amending a refinement plan that replaced the existing zoning designations with new mixed-use plan designations and zones intended to revitalize the Willamette River waterfront.  Petitioner, who owned a manufactured dwelling park on land that was previously zoned low density residential and was rezoned to Employment Mixed-Use, which does not allow manufactured dwelling parks, assigned error under a number of Statewide Planning Goals.  With regard to challenges regarding Goal 15, the Willamette River Greenway goal, LUBA found that identifying a 75-foot setback from the Willamette River may be consistent with other laws, but that such a finding fails to explain how the setback is established to “protect, maintain, preserve and enhance” the Willamette River as it is identified for protection in the city’s adopted inventories.  For this as well as many other reasons related to findings, LUBA remanded the decision extending what was a four-year planning effort to at least another year of delay.

The thing about adequate findings is that, although time consuming and often mind-numbing to draft, they are the low hanging fruit of errors in land use decision making that would be easy to correct.  The additional delay and cost associated with LUBA remands based on inadequate findings serves as fodder for Oregon land use system opponents who work to paint the process as too cumbersome, complicated, time-consuming, and anti-development.  The burden ultimately is on land use planners, local government attorneys, and decision-makers to demand better from their staff to take the time to avoid making these elementary errors.

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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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