Byrnes v. City of Aurora

• Decision Date: 15 June 2021
• Docket Number: LUBA No. 2020-092
• Parties: MIKE BYRNES, Petitioner, v. CITY OF AURORA, Respondent.
• Court: Oregon Land Use Board of Appeals

MIKE BYRNES, Petitioner, v. CITY OF AURORA, Respondent.

LUBA No. 2020-092

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

June 15, 2021

FINAL OPINION AND ORDER

Appeal from City of Aurora.

E. Michael Connors filed the petition for review and reply brief and argued on behalf of petitioner. Also on the brief was Hathaway Larson LLP.

Emily Gilchrist filed the response brief and argued on behalf of respondent.

RYAN, Board Member; ZAMUDIO, Board Member, participated in the decision.

RUDD, Board Chair, did not participate in the decision.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850. Opinion by Ryan.

NATURE OF THE DECISION

Petitioner appeals a city council decision denying an application to modify an approved site design review to add a garage door to the basement of a commercial building.

FACTS

The subject property is owned by petitioner and abuts First Street NE to the south. First Street NE is an approximately 250-foot long and 24-foot wide dead-end street, within a 90-foot wide right-of-way, that is classified in the City of Aurora Transportation System Plan as a Local Residential street. City of Aurora Transportation System Plan App A; Record 119. A portion of First Street NE is paved, but the east end is either not improved or improved with gravel. There is one property to the south of First Street NE, between First Street NE and Highway 99E.

Prior to 2019, the subject property included a Quonset hut building that took access both from a driveway on the east end of First Street NE and from a shared driveway over the western boundary of the subject property. An aerial site plan showing the location of the Quonset hut, First Street NE, and the property to the south of First Street NE is below:

Image materials not available for display.

Supplemental Record 12.

In 2019, petitioner applied for site design review for an 8,125-square-foot building to replace the Quonset hut, which petitioner proposed to demolish. The footprint of the proposed building encompasses not only the entire footprint of the Quonset hut but the driveway on the east end of First Street NE, as well. The application proposed and the city approved a parking lot and a loading space on the north side of the building, and a two-foot setback planted with grass on the south side of the building. Record 229.

The planning commission approved the site design review application.¹ After construction began, petitioner discovered poor soil quality under the demolished Quonset hut and sought approval from the city to construct a concrete foundation and 1,875-square-foot basement under the eastern approximately one-half of the proposed building. The city approved the concrete foundation and basement as part of building permit approval. Record 189.

In April 2020, petitioner applied to modify the approved site design review to include an access door directly into the basement on the southern façade of the building. Petitioner proposed a roll-up style garage door measuring eight feet by eight feet. Petitioner's proposal explains that the purpose of the south-facing access door would be to allow service vehicles to drive into the basement when installing, servicing, and replacing mechanical equipment that is intended to be located there. Record 7.

The planning director concluded that the request was a major modification to an approved site design review and, consequently, that Aurora Municipal Code (AMC) 16.58.060(B) required the planning commission to review theapplication.² The planning commission denied the application on three bases. First, because the footprint of the proposed building encompasses the driveway on the east end of First Street NE, and because petitioner had already excavated and leveled off the driveway pursuant to the building permit, the planning commission concluded that petitioner had voluntarily relinquished or abandoned that access. Record 7. Second, the planning commission concluded that the proposal is for a "loading space" and that it fails to satisfy the standards in AMC 16.42.020(B) for loading spaces. Record 7-8. Third, the planning commission concluded that the proposal is for an "access aisle" and a "service drive" and that it fails to satisfy the standards in AMC 16.42.050(F) and (I) for access aisles and service drives. Record 9-10.

Petitioner appealed the planning commission's decision to the city council, which held a hearing on the appeal. At the conclusion of the hearing, the city council voted to deny the application. The city council adopted the planning commission's findings as well as supplemental findings included in a memorandum from the city's attorney. Record 2-41. This appeal followed.

INTRODUCTION

The city denied petitioner's application. Generally, only one valid basis is required for denial of an application and, where LUBA has affirmed one basis for denial, any error committed with respect to alternative or independent bases for denial does not provide a basis for reversal or remand. Wal-Mart Stores, Inc. v. Hood River County, 47 Or LUBA 256, 266, aff'd, 195 Or App 762, 100 P3d 218 (2004), rev den, 338 Or 17 (2005). For the reasons explained below, we deny the third assignment of error and conclude that at least one of the city's bases for denial is valid—that the proposal is for a loading space and that the loading space does not meet the dimensional standards. Because we deny the third assignment of error, the city's decision must be affirmed. In that circumstance, LUBA typically does not address challenges directed at other, alternative bases for denial. However, due to the posture of this appeal and the other bases for denial, resolution of additional issues may be useful if, in the future, petitioner files a new application. We therefore also resolve the issues presented in the first and second assignments of error, so that the parties will have a more complete resolution by LUBA of the appeal.

FIRST ASSIGNMENT OF ERROR

In the first assignment of error, petitioner argues that the city council improperly construed the AMC when it concluded that petitioner had relinquished or abandoned the access on the east end of First Street NE. The city concluded:

"[T]he Planning Commission finds that [petitioner's] construction activity displaced and closed the access driveway in early 2020. The gate has been removed, the former driveway has been excavated and leveled off. The existing building permit authorized construction of the new building where the access driveway was formerly located and included no approval for replacement or reinstatement of the previously closed access drive. The Planning Commission reviewed [petitioner's] site plan and finds that [petitioner] voluntarily replaced the closed access to First St. with new access to the subject property leading from the west up to the north side of the building. * * * The Planning Commission finds no evidence that the city demanded closure of the First St. access driveway. The Planning Commission concludes that vehicle access into the northwest portion of the site was approved by the City at [petitioner's] request in [the site design review approval], and was therefore lawfully established. Because that access was designed by [petitioner] to serve the parking area and the loading space for this building and property, the Planning Commission finds the new access provides reasonable access to the subject property, and therefore that a second vehicle access to the subject property is not required." Record 7.

City approval or denial of a discretionary permit application must be based on standards and criteria set forth in the city's code. ORS 227.173(1). Petitioner argues that the city's findings do not identify any provision of the AMC that provides that an existing property loses access from a public street if that access is not shown on an approved site design review or if construction activity is performed in the access.

The city responds that the city council did not deny the application on the basis that petitioner had relinquished or abandoned access from the east end of First Street NE. Based on the findings quoted above, we reject that premise. Thecity council relied on its conclusion that the property could no longer be accessed from First Street NE as one basis to deny the application.

The city also responds that the city council correctly concluded that petitioner relinquished access from the east end of First Street NE by (1) excavating the driveway and (2) proposing, in the site design review application that was approved, to construct the new building where the driveway was located. However, nothing in the city's decision or the response brief points to any provision of the AMC that requires a site design review application to show existing access points in order to preserve those access points if the application is approved, that limits access to a property to a single access...