Lennar Nw., Inc. v. Clackamas Cnty.

• Decision Date: 31 August 2016
• Docket Number: A162228
• Citation: 280 Or.App. 456,380 P.3d 1237
• Parties: Lennar Northwest, Inc., Respondent, v. Clackamas County and Friends of Jennings Lodge, Petitioners, and Patricia Reinert, Respondent below.
• Court: Oregon Court of Appeals

280 Or.App. 456

380 P.3d 1237

Lennar Northwest, Inc., Respondent,

v.Clackamas County and Friends of Jennings Lodge, Petitioners,andPatricia Reinert, Respondent below.

A162228

Court of Appeals of Oregon.

Argued and submitted July 13, 2016.

August 31, 2016

Nathan Boderman argued the cause for petitioner Clackamas County. With him on the brief was Stephen Madkour.

William K. Kabeiseman, Portland, argued the cause for petitioner Friends of Jennings Lodge. With him on the brief was Garvey Schubert Barer.

Kelly S. Hossaini, Portland, argued the cause for respondent. With her on the brief was Miller Nash Graham & Dunn LLP.

Before Sercombe, Presiding Judge, and Lagesen, Judge, and Tookey, Judge.

SERCOMBE

, P.J.

This case concerns whether, in denying a petition seeking higher density residential rezoning, a county hearings officer properly interpreted and applied the relevant rezoning approval standards. The Land Use Board of Appeals (LUBA) concluded that the hearings officer insufficiently explained the meaning of one of the standards that was applied to deny the rezoning. Neither Clackamas County nor respondent Friends of Jennings Lodge (collectively, respondents) challenge that determination on review. LUBA also concluded that the hearings officer erred in discounting the probative value of three other rezoning standards. On review, respondents argue that the hearings officer's “weighting” of the standards was appropriate. We review LUBA's order to determine whether it is “unlawful in substance.” ORS 197.850(9)(a)

. We agree with LUBA's determination that the hearings officer erred in discounting the relevance of two of the rezoning standards and giving primacy to another rezoning standard. Accordingly, we affirm the LUBA order.

We take the relevant facts from LUBA's opinion. Petitioner Lennar Northwest, Inc., owns a 16.77–acre parcel of land located in the Jennings Lodge neighborhood of Clackamas County. That neighborhood is in an unincorporated area north of Gladstone, and is bounded on the west by the Willamette River. The property was formerly used as a religious camp and conference center and is improved with institutional dwellings, an auditorium, and other structures. The property is zoned Immediate Urban Low Density Residential R–10 (R–10) under the Clackamas County Zoning and Development Ordinance (ZDO), a zoning district that generally requires a minimum lot size of 10,000 square feet. ZDO 315.04 (Table 315–2).

Petitioner seeks to redevelop the property into a 72–lot residential subdivision and, to that end, applied to the county for, among other things, a zone change to Immediate Urban Low Density Residential R–8.5 (R–8.5), a zoning district that allows lots with a minimum lot size of 8,500 square feet in area. Id .¹ The approval standards for zone changes are set out at ZDO 1202.03, which requires the county to determine whether “[t]he proposed zone change is consistent with the applicable goals and policies of the Comprehensive Plan” and to assess the adequacy of public utilities and streets for development under the proposed zoning district.

The particular “goals and policies” of the Clackamas County Comprehensive Plan (CCCP) applicable to the subject rezoning are set out at CCCP Policy 4.R.2:²

“Zoning of Immediate Urban Low Density Residential areas and conversion of Future Urban areas to Immediate Urban Low Density Residential shall include zones of 2,500; 5,000; 7,000; 8,500; 10,000; 15,000; 20,000, and 30,000 square feet (R–2.5 through R–30). The following factors guide the determination of the most appropriate zone:

“[Factor 1] Physical site conditions such as soils, slope, and drainage:

“a. Land with soils subject to slippage, compaction or high shrink-swell characteristics shall be zoned for larger lots.

“b. Land with slopes of:

“• Less than 20 percent shall be considered for the R–2.5 through R–8.5 zoning districts.

“• 20 percent or over shall be considered for the R–10 through R–30 zoning districts.

“c. Land with hydrological conditions such as flooding, high water table or poor drainage shall be zoned for larger lots.

“[Factor 2] Capacity of facilities such as streets, sewers, water, and storm drainage systems.

“[Factor 3] Availability of transit: Land within walking distance (approximately one-quarter mile) of a transit stop should be zoned for smaller lots implemented by the R–2.5, R–5, R–7, and R–8.5 zoning districts.

“[Factor 4] Proximity to jobs, shopping, and cultural activities: Areas in proximity to trip generators shall be considered for smaller lots implemented by the R–2.5, R–5, R–7, and R–8.5 zoning districts.

“[Factor 5] Location of 2,500– and 5,000 square-foot lots: Location of 2,500 and 5,000 square foot lots, implemented by the R–2.5 and R–5 zoning districts, may be allowed in Corridor design type areas and where permitted by Community and Design Plans located in Chapter 10.

“[Factor 6] Need for neighborhood preservation and variety: Areas that have historically developed on large lots where little vacant land exists should remain zoned consistent with the existing development pattern. Otherwise, unless physical or service problems indicate to the contrary, areas of vacant land shall be zoned for lots of 8,500 square feet or smaller.

“[Factor 7] Density average: To achieve an average of 7,500 square feet or less per lot in low density Future Urban areas when conversion to Immediate Urban low density residential occurs, the R–10 zone shall be limited to areas with 20 percent slope and greater. Flexible-lot-size land divisions and other buffering techniques shall be encouraged in those areas immediately adjacent to developed subdivisions with lots of 20,000 square feet or more to protect neighborhood character, while taking full advantage of allowed densities.”

The hearings officer denied the zone change and subdivision approval applications, concluding that, although Factors 1, 2, and 3 supported the rezoning request, they were less important or “weighty” compared with Factor 6; Factor 4 was “neutral”; Factors 5 and 7 did not apply; and Factor 6 strongly supported a continuation of the existing zoning and controlled the outcome of the rezoning request.³

With respect to Factor 2, the hearings officer determined that, even though streets and public utilities could be extended into the property as it developed at a higher density, Factor 2 only “slightly supports a zone change to R–8.5 zoning.” As noted, this was because, “[w]hile [Factors 1 and 2] might be dispositive in determining that a property should not be zoned for smaller lots, I believe they are less important in determining that a property should be rezoned for smaller lot sizes when other [factors] point the other way.”

Regarding Factor 3, the hearings officer found that there was a bus stop on a street adjacent to the property that was less than one-quarter mile from two planned street entrances to the proposed subdivision, and another bus stop on a street slightly farther away from the property, but that the lack of sidewalks in the area made those bus stops less accessible and the factor less supportive of the zone change:

“I believe some consideration can be given to the ability to reach the transit stops. Opponents argue the transit stop on River Road is dangerous to reach because it is [on] a busy, narrow road without sidewalks. * * * While the transit stop on River Road does require walking a short distance without sidewalks, I do not see that it is so prohibitive to render the transit stop not within walking distance. [Factor 3] slightly supports a zone change to R–8.5 zoning.”

(Footnote omitted.)

As to Factor 4, although the hearings officer concluded that the property was proximate to jobs, shopping, and cultural centers, and that it was “in proximity to trip generators,” he nonetheless determined that “there are not many jobs from the commercial corridor near the subject property, [and] the shopping is very limited.” For that reason, the hearings officer determined that Factor 4 “does not strongly favor or disfavor” the zone change.

Furthermore, the hearings officer concluded that the policy in Factor 6 strongly supported a denial of the rezoning request. Factor 6 provides:

“Need for neighborhood preservation and variety: Areas that have historically developed on large lots where little vacant land exists should remain zoned consistent with the existing development pattern. Otherwise, unless physical or service problems indicate to the contrary, areas of vacant land shall be zoned for lots of 8,500 square feet or smaller.”

The hearings officer found that the property “is entirely surrounded by other R–10 zoned properties.” He noted that some underdeveloped properties in the area have been developed at higher densities, but those properties were near McLoughlin Boulevard (about one-third mile to the east). The hearings officer concluded that the subject property did not contain “vacant” land because the property had been put to use in the past, as had most of the nearby land. If properties were cleared of existing structures, in the view of the hearings officer, they would not necessarily be “vacant” under Factor 6 because that would be “an obvious end run around the [policy].” For those reasons, the hearings officer concluded that Factor 6 “strongly favors retaining the R–10 zoning of the property.”

Finally, the hearings officer adopted a “balancing test” to evaluate the application of CCCP Policy 4.R.2:

“The balancing test essentially comes down to balancing the fact that the topography and available utilities would accommodate R–8.5 zoning and the property has a transit stop nearby against the need for neighborhood preservation and variety. * * *

“ * * * * *

“* * * While the applicant argues that ten additional lots on such a large property would similarly not stand out, I believe that rezoning this property would have a very noticeable effect on the existing neighborhood. Furthermore, creating such a large island of R–8.5 zoning in a sea

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