Friends of Neabeack Hill v. City of Philomath
Jurisdiction | Oregon |
Parties | FRIENDS OF NEABEACK HILL and John P. Bolte, Petitioners, v. CITY OF PHILOMATH and Schneider Homes, Inc., Respondents. ; CA A90489. |
Citation | 139 Or.App. 39,911 P.2d 350 |
Docket Number | No. 95-027,95-027 |
Court | Oregon Court of Appeals |
Decision Date | 09 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) ( ).
The city explained its 2A designation under the goal and rule:
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:
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.
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:
Relatedly, LUBA rejected petitioners' contention that the city's action was inconsistent with the area's 2A designation, and explained that petitioner's argument
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