Dahlen v. City of Bend

• Decision Date: 14 June 2021
• Docket Number: LUBA No. 2021-013
• Parties: SCOTT DAHLEN, Petitioner, v. CITY OF BEND, Respondent, and JOHN ROEDER, Intervenor-Respondent.
• Court: Oregon Land Use Board of Appeals

SCOTT DAHLEN, Petitioner, v. CITY OF BEND, Respondent,andJOHN ROEDER, Intervenor-Respondent.

LUBA No. 2021-013

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

June 14, 2021

FINAL OPINION AND ORDER

Appeal from City of Bend.

Scott Dahlen filed the petition for review and argued on their own behalf.

No appearance by City of Bend.

Christopher P. Koback filed the response brief and argued on behalf of intervenor-respondent.

RUDD, Board Chair; RYAN, Board Member; ZAMUDIO, Board Member, participated 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 Rudd.

NATURE OF THE DECISION

Petitioner appeals a hearings officer decision approving a six-phase, 141-lot subdivision.

FACTS

The 20.4-acre subject property is located in the northeast quadrant of the city, an area of the city that is

"developed with a mix of standard density and low-density residential uses. All of the properties in the surrounding area are zoned [Standard Density Residential (RS)] and are part of the Lava Ridge Refinement Plan Area. To the north of the property lies Morningstar Drive and Boyd Acres Road (designated as local connector streets on the Lava Ridge Refinement Area Transportation Map) and beyond that, the Northridge Subdivision. To the east lies the Wishing Well Phase 1 Subdivision and the stubbed Town Drive (a local street). To the south lies the Yardley Estates Phase 3 Subdivision and the stubbed Peale Street (a local street), and to the west lies the Madison Phase 5 Subdivision and the stubbed Silas Drive (a local street)." Record 33.

Although vegetated with juniper trees, rabbit brush, and sagebrush, and developed with a single-family residence and associated structures, the subject property is mostly vacant. Intervenor applied to remove the existing structures and develop a subdivision on the subject property. Intervenor's tentative plan application explained that the proposed subdivision is phased:

"Phase I (Lots 1-22) is located in the northeastern comer of the subject property adjacent to Morningstar Drive; Phase II (Lots 23-50) is located immediately to the south of Phase I. Phases III (Lots 51-67) and IV (Lots 68-97) are located to the west of Phases I and II and are situated with Phase III to the north and Phase IV to thesouth. Phases V (Lots 98-111) and VI (Lots 112-141) are located to the west of Phases III and [IV] and are situated with Phase V to the north and Phase VI to the south." Id.

On November 16, 2020, the hearings officer held a public hearing and considered intervenor's application. On December 10, 2020, the hearings officer issued a decision approving the application with conditions. On December 21, 2020, petitioner appealed the hearings officer's decision to the city council. On December 29, 2020, the city council declined to hear the appeal. This appeal followed.

ASSIGNMENT OF ERROR

Bend Development Code (BDC) 3.4.400(A) contains the city's "to and through" standard, providing that "[s]anitary sewers and water mains must be installed to serve each new development and to connect developments to existing mains in accordance with the City's construction specifications as described in the City of Bend Standards and Specifications document and the applicable Bend Comprehensive Plan policies." (Emphases added.) Petitioner notes that the "to and through" standard in BDC 3.4.400(A) is repeated in City of Bend Design Standard 4.1.17, which provides:

"If a sewer extension is required as part of Section 4.1.16 for compliance with OAR 340-071-0160, the property owner shall be required to extend the City sewer main a distance sufficient to establish a standard perpendicular service connection into the property or 20 feet, whichever is greater.

For all other developments, sewer mains shall be required to be extended to and through the length of the property frontage." (Emphasis added.)

The city's definition of "development" includes subdivisions,¹ and the parties agree that BDC 3.4.400(A) requires intervenor eventually to provide a sewer connection to two lots (Lots 5 and 6 of the Madison Phase 5 Subdivision) that are owned by petitioner and located adjacent to Phase V of intervenor's proposed subdivision. However, the parties dispute when intevenor must provide that sewer connection.

The hearings officer explained in their decision that

"[t]he abutting Madison Phase 5 subdivision was reviewed under PZ-03-0256 and was recorded in 2006. Lots 5 and 6 of that subdivision are at a lower elevation than the remainder of that subdivision, so it was not possible for those lots to gravity flow to the west like the other lots in that development. The City wanted to minimize the number of pump stations and because the subject property was in the process of obtaining subdivision approval under PZ-06-0313 it was believed that within months a sewer mainline would be constructed which would gravity flow to the east. It was decided that a 'dry' section of sewer main would be installed in Madison Phase 5 and then would be extended to the east on the subject property in short order. Unfortunately, the real estate market crashed and the development of the subject property was abandoned. This left the 46-foot section of 'dry' sewer an orphan in the Citysewer system." Record 90.

The hearings officer conditioned their approval of intervenor's tentative plan as follows:

"Th[e Madison Phase 5] dry sewer main must be connected to the rest of the system in [intervenor's] construction phase where Silas Drive, and underlying utilities, are improved to comply with the 'to and through policy' and to contribute to the orderly development of the City. The submitted Site Plan shows the extension of a sewer main to the western boundary of the subject property in Silas Drive." Id. (citation omitted).

Petitioner's sole assignment of error is that, because the hearings officer's decision requires intervenor to provide a sewer connection at the time that intervenor improves Silas Drive—that is, during the development of Phase V of their proposed subdivision—the decision does not ensure that the sewer connection will ever be built. According to petitioner, the "to and through" standard is not met because intervenor may avoid construction of the connection by not constructing Phase V of their subdivision.

We will reverse or remand a decision where the local government misconstrued a land use regulation or made a decision that is not in compliance with an applicable land use regulation. ORS 197.835(8), (9)(a)(D)...