Friends of Neabeack Hill v. City of Philomath

JurisdictionOregon
PartiesFRIENDS OF NEABEACK HILL and John P. Bolte, Petitioners, v. CITY OF PHILOMATH and Schneider Homes, Inc., Respondents. ; CA A90489.
Citation139 Or.App. 39,911 P.2d 350
Docket NumberNo. 95-027,95-027
CourtOregon Court of Appeals
Decision Date09 April 1996

Judicial Review from Land Use Board of Appeals.

Hilary E. Berkman, argued the cause and filed the brief, for petitioners.

Scott A. Fewel, Corvallis, argued the cause, for respondent City of Philomath.

George B. Heilig, Portland, argued the cause, for respondent Schneider Homes, Inc. On the brief were James K. Brewer and Eickelberg & Fewel, and George B. Heilig and Cable, Huston, Benedict & Haagensen.

Before DE MUNIZ, P.J., and HASELTON and ARMSTRONG, JJ.

De MUNIZ, Presiding Judge.

Petitioners seek review of LUBA's remand of respondent City of Philomath's approval of respondent Schneider Homes, Inc.'s application to develop a subdivision in the Neabeack Hill area. Petitioners oppose the application, and they assign error to a number of LUBA's rulings in which it rejected their contentions. We write to address only their argument that LUBA erred in sustaining the city's interpretation of Resources and Hazards Policy 6 of its comprehensive plan as allowing the disturbance and partial removal of a wooded Goal 5 resource site in the vicinity of the development. We affirm.

Before considering the specifics of the city's decision approving the application, LUBA's decision and the parties' arguments here, an understanding of the relevant aspects of the city's Goal 5 planning history is necessary. The city's comprehensive plan and land use regulations are acknowledged and have successfully undergone periodic review. As part of its planning program, the city gave the site in question a so-called "2A designation" for purposes of Goal 5. The city concluded that there were no uses that conflicted with the resource, and the designation was therefore dictated by Goal 5 itself ("[w]here no conflicting uses for such resources have been identified, such resources shall be managed so as to preserve their original character"), and by a provision of LCDC's Goal 5 implementing rule, OAR 660-16-005(1) (if no conflicting uses are identified the local government shall "insure preservation of the resource site").

The city explained its 2A designation under the goal and rule:

"This area is covered in primarily oak forest, and is visible from most of Philomath. It is one of the few oak covered hillsides visible from Philomath. The current Comprehensive Plan Designation is Low Density Residential, the County zoning is Urban Residential--5 acre minimum; City zoning upon annexation will be Low Density Residential (R-1). Due to the low density plan and zone designations, the site can be developed in a way that will preserve the existing vegetation. Based on this information, the site is designated '2-A.' "

To implement the designation, the city included Policy 6 in its plan. The policy provides:

"The natural vegetation located on Neabeack Hill shall be preserved to the maximum extent possible by limiting clearing to that which is necessary for housing, roads, and utilities."

As we will discuss in some detail below, petitioners' appeal from the particular land use decision in question does not provide a proper occasion for re-evaluating the consistency of the acknowledged plan in general, or Policy 6 in particular, with Goal 5 or the LCDC rule. Nevertheless, some observations that appear to raise questions along those lines are necessary to an understanding of the issues that are now presented and of our disposition. Arguably, the city's Goal 5 process and its promulgation of Policy 6 were at odds with the goal and OAR 660-16-005(1), in three connected respects, as of the time that its plan was found to comply with the goals in the periodic review process: first, the residential use allowed by the zoning is ipso facto one that conflicts with the resource, and that required further analysis pursuant to the goal and the implementing rules rather than the automatic designation of the site as 2A; second, and correspondingly, the "preservation of the resource" approach embodied in the 2A designation made residential use in the resource area impermissible; and third, the city could not properly, as Policy 6 provides, allow residential and related development that conflicts with the preservation of the resource in the area that is designated as a preservation site because no conflicts were identified. 1

In acting on the present application, the city governing body interpreted Policy 6 as permitting disturbance and some removal of the wooded resource as proposed by the application, subject to conditions imposed by the city. Petitioners contended to LUBA that that was a reversible misinterpretation of the plan policy. Their contention was based on a number of grounds, including that the interpretation was contrary to Goal 5 and OAR 660-16-005(1) and, consequently, should be reversed under ORS 197.829(1)(d) (formerly ORS 197.829(4) (1993)). ORS 197.829(1) provides:

"The Land Use Board of Appeals shall affirm a local government's interpretation of its comprehensive plan and land use regulations, unless the board determines that the local government's interpretation:

"(a) Is inconsistent with the express language of the comprehensive plan or land use regulation;

"(b) Is inconsistent with the purpose for the comprehensive plan or land use regulation;

"(c) Is inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation; or

"(d) Is contrary to a statute, land use goal or rule that the comprehensive plan provision or land use regulation implements." 2 (Emphasis supplied.)

Petitioners assert "LUBA affirmed an interpretation of Policy 6 which allows development to the full extent zoning permits, without regard to vegetation. That is, under LUBA's and the city's interpretation, all of the trees can be removed from Neabeack Hill if it is 'necessary for housing, roads and utilities' as long as the development is allowed by the zoning. In other words, 'preserved to the maximum extent possible' in Policy 6 can mean 'not at all.' LUBA erred in affirming that interpretation.

" * * * * *

"The city's Comprehensive Plan Resources and Hazards Policy # 6 implements Goal 5 and OAR 660-16-005. Where, as here, no conflicting uses have been identified, the city's Goal 5 Inventory and Analysis Comprehensive Plan Amendment requires that a 2A resource be managed 'so as to preserve its original character.' OAR 660-16-005 requires that policies and ordinances 'insure preservation of the resource site.' LUBA cannot affirm the city's interpretation of Policy 6 if it is 'contrary to a land use goal or rule it implements.' ORS 197.829(4).

"Here, the most generous reading of the city's interpretation would allow removal of at least 75 percent of the trees and nearly the entire understory from the proposed development site, while adding 100 homes, associated roads, utilities and accessories. That interpretation is contrary to the Goal and Rule that the policy implements. It is impossible to retain the character of the oak forest on Neabeack Hill while removing nearly all of its vegetation and building 100 homes. Because the interpretation that LUBA affirmed is contrary to Goal 5 and OAR 660-16-005, LUBA erred in affirming it, and its order is unlawful in substance. Because the issue of whether the city's interpretation is contrary to the goal it implements is a question of law, LUBA's order should be reversed." (Footnotes and citation to record omitted.)

Like respondents', LUBA's reasoning concerning the city's interpretation of Policy 6 did not rely on ORS 197.829(1)(d) to any cognizable extent. Rather, LUBA said:

"Petitioners misconstrue the requirements of Policy 6. As with the 2A designation, Policy 6 recognizes the site's R-1 residential zoning. It does not require that the city reduce the permitted density to preserve more natural vegetation than necessary for development consistent with the R-1 zone. So long as the proposed development provides for an average lot size of no less than 7,000 square feet, Policy 6 requires only that disturbances of natural vegetation be limited to that which is necessary for housing, roads, and utilities.

" * * * * *

"Policy 6 does not, by its terms, limit the amount of clearing necessary for housing, roads and utilities. Nonetheless, the city's application of Policy 6 to this subdivision does reflect an interpretation that Policy 6 also requires a demonstration that the proposed development is designed in a manner that will preserve the site's natural vegetation and thereby limit the amount of clearing necessary for housing, roads and utilities. The city's interpretation actually ensures more preservation than the express language of the policy requires.

"Petitioners do not contest the evidence upon which the city's findings are based. Rather, their substantial evidence argument is based upon either their disagreement with the density allowed by the R-1 zone, or upon an interpretation that Policy 6 imposes additional restrictions on the density allowed in the R-1 zone.

"Petitioners have not established that the city's interpretation of Policy 6 is clearly wrong. We affirm the city's interpretation. Clark v. Jackson County, 313 Or. 508, 836 P.2d 710 (1992); ORS 197.829."

Relatedly, LUBA rejected petitioners' contention that the city's action was inconsistent with the area's 2A designation, and explained that petitioner's argument

"is, in effect, a challenge to the city's decision to zone the site for residential development, rather than open space. That decision is not subject to review during this process, and petitioners cannot collaterally attack that decision by arguing that residential development is inconsistent with the [acknowledged] 2A decision. * * * Nor...

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