Friends of Historic Albany v. City of Albany, LUBA No. 2020-078

CourtOregon Land Use Board of Appeals
PartiesFRIENDS OF HISTORIC ALBANY, Petitioner, and CAMRON SETTLEMIER, Intervenor-Petitioner, v. CITY OF ALBANY, Respondent, and MARK SIEGNER, Intervenor-Respondent.
Docket NumberLUBA No. 2020-078
Decision Date04 May 2021

FINAL OPINION AND ORDER

Appeal from City of Albany.

Carrie A. Richter filed a petition for review and argued on behalf of petitioner. Also on the brief was Bateman Seidel Miner Blomgren Chellis & Gram, P.C.

Camron Settlemier filed a petition for review and reply brief.

No appearance by City of Albany.

Bill Kloos filed the response brief and argued on behalf of intervenor-respondent.

ZAMUDIO, Board Member; RUDD, Board Chair; RYAN, 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 Zamudio.

NATURE OF THE DECISION

Petitioner Friends of Historic Albany (FOHA) and intervenor-petitioner Settlemier challenge a city council historic review decision approving new construction of two three-story, mixed-use buildings within the Monteith National Register Historic Overlay District (Monteith District).

MOTION TO STRIKE

Intervenor-respondent Siegner (intervenor) moves to strike the following statement in Settlemier's reply brief: "There has been no new construction of this scale and no big buildings built next to houses in the Monteith or Hackleman Historic District Overlays since the inception of the historic districts." Reply Brief 3. Intervenor argues that we should strike that statement because it is unsupported by citations to the record. Settlemier responds to the motion to strike with citations to the record and quotations supporting the disputed statement.

Our review is limited to the local record. ORS 197.835(2)(a). We will generally disregard factual statements that are not supported by evidence in the record. Settlemier's responsive citations appear to support the disputed statement. The motion to strike is denied, and we will consider that statement for whatever it is worth to our review. However, we note that LUBA's role is generally not to find facts in the first instance but, rather, to review the city's decision and any challenges to its findings that are material to the satisfaction of applicable criteria.

FACTS

The subject property is vacant.1 It is located on a corner and abuts Calapooia Street to the west and Fourth Avenue to the south. The northern property boundary abuts an alley that runs roughly east-west, parallel to Fourth Avenue and Third Avenue, and connects to Calapooia Street and Washington Street. The subject property is within and near the northern boundary of the Monteith District. The Historic Downtown District is northeast of and partially adjacent to the Monteith District.

The subject property is zoned Downtown Mixed Use (DMU), as is the remainder of the northeastern corner of the Monteith District. "The DMU district is intended for a mix of retail, services, institutions, offices, and housing that supports businesses in and around the Historic Downtown District. Mixed uses are encouraged both horizontally and vertically. High-density residential infill and office employment are both encouraged." Albany Development Code (ADC) 5.030(2). The proposed use is allowed in the DMU zone, subject to site plan review. The site plan review was processed separately and is not challenged in this appeal.

As explained in further detail below, new construction of structures over 100 square feet in a historic district requires historic review of exterior design toensure that new structures are compatible with the character of the historic district. ADC 7.230. Within the Monteith District, the city must find that the historic review approval request meets the following criteria:

"(a) The development maintains any unifying development patterns such as sidewalk and street tree location, setbacks, building coverage, and orientation to the street.
"(b) The structure is of similar size and scale of surrounding buildings, and as much as possible reflects the craftsmanship of those buildings.
"(c) Building materials are reflective of and complementary to existing buildings within the district." ADC 7.270(1).

Intervenor requested historic review approval for new construction consisting of two large, multi-story, mixed-use structures intended for commercial uses on the first floor and two stories of residential uses, with two small accessory structures for tenant storage. Each primary building (Building One and Building Two) will be three stories, approximately 40 feet, 10 inches, tall and nearly 58 feet wide, with a total building area of 6,732 square feet each. Record 626-28. The primary buildings will be set back between two feet and three feet, 6 inches from their respective front property lines. The structure exteriors will be a mixture of siding types, including primarily Hardiplank smooth-finish composite lap siding with wood trim and details and wood shingle and stone masonry accents. The roof will be composite with metal awnings. Balconies will have power-coated metal railing. Windows will be made of composite materials with wood trim.

City planning staff recommended approval with conditions in a staff report dated April 29, 2020. Record 620. The planning director referred the application to the landmarks commission for review.2 The landmarks commission denied the application for noncompliance with ADC 7.270(1)(a) and (b). Intervenor appealed that denial to the city council.

On June 24, 2020, the city council held a de novo public hearing on the application. At the end of that hearing, the city council closed the public hearing, deliberated, and orally tentatively approved the application and directed staff to draft findings supporting the approval. On July 8, 2020, the city council issued its final written decision approving the application and adopting the findings in both a staff memo dated July 1, 2020, and the April 29, 2020 staff report. This appeal followed.

SETTLEMIER FIRST AND SECOND ASSIGNMENTS OF ERROR

In their first assignment of error, Settlemier alleges that the city council failed to follow applicable procedures in a manner that prejudiced their substantial rights and that the city council's findings are inadequate.

A. July 1, 2020 Staff Memo Containing Written Findings

LUBA will reverse or remand a decision where the local government failed "to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights" of the parties. ORS 197.835(9)(a)(B). Settlemier argues that the July 1, 2020 staff memo provided to the city council constitutes new evidence that the city council improperly allowed into the record and relied upon without providing Settlemier an opportunity to respond. Settlemier cites former ADC 1.490(12) (May 10, 2000), which governs quasi-judicial procedures and provides: "If additional documents or evidence are provided in support of an application, any party shall, upon request, be entitled to a continuance of the hearing to allow for adequate preparation of rebuttal. Such a continuance shall not be subject to the limitations of ORS 227.178."3

Intervenor responds that the July 1, 2020 staff memo is not additional material in support of the application but instead contains draft findings. Intervenor disputes that Settlemier has any right to rebut findings prepared between a tentative oral approval and final written decision, citing Adler v. City of Portland, 24 Or LUBA 1 (1992). We agree with intervenor. In Adler, we explained:

"An oral tentative decision typically will determine whether therequest for land use approval is denied, approved, or approved with conditions. The oral tentative decision may include an exhaustive explanation of the rationale underlying the decision, but often it will not. Because land use decisions in this state must be supported by written findings, it is standard procedure for local government decision makers to make a tentative decision and direct staff or the prevailing party to prepare a final written decision and supporting findings for their review and adoption. As long as the decision maker in fact adopts the written decision and supporting findings, it does not matter that every aspect of the reasoning in support of the decision may not have been previously articulated orally. Of course, the legal adequacy of any such findings and the evidentiary support for those findings may be challenged in an appeal to this Board." 24 Or LUBA at 12-13.

ADC 1.490(12) applies to the evidence presented during a quasi-judicial hearing. The July 1, 2020 staff memo is not a document or evidence provided in support of the application. Instead, it is a document provided to the city council in support of its final decision, which is typical, as explained in Adler. ADC 1.490(12) does not provide a substantial procedural right for a participant in a quasi-judicial land use proceeding to challenge prepared findings or submit rebuttal between a tentative oral decision and a final written decision.

Settlemier also argues that the city council adopted inconsistent findings, based on differences between the April 29, 2020 staff report and the July 1, 2020 staff memo. Adequate findings must (1) identify the relevant approval standards, (2) set out the facts relied upon, and (3) explain how those facts lead to the conclusion that the approval standards are satisfied. Heiller v. Josephine County, 23 Or LUBA 551, 556 (1992). There are circumstances where adoption of inconsistent findings warrants remand. See, e.g., Larmer Warehouse Co. v. Cityof Salem, 43 Or LUBA 53, 59-60 (2002) (remanding a decision denying a zone change where the city adopted as findings both a staff report that recommended and provided the rationale for denying the zone change and an earlier staff report that recommended and provided the rationale for approving the zone change).

The city's adopted and incorporated findings are...

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