Reinert v. Clackamas Cnty., A163389

• Decision Date: 28 June 2017
• Docket Number: A163389
• Parties: Patricia REINERT, Petitioner, v. CLACKAMAS COUNTY and Lennar Northwest, Inc., Respondents.
• Court: Oregon Court of Appeals

286 Or.App. 431

398 P.3d 989

Patricia REINERT, Petitioner,

v.CLACKAMAS COUNTY and Lennar Northwest, Inc., Respondents.

A163389

Court of Appeals of Oregon.

Argued and submitted December 6, 2016.

June 28, 2017

Dorothy S. Cofield, Lake Oswego, argued the cause for petitioner. With her on the brief was Cofield Law Office.

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

No appearance for respondent Clackamas County.

Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and DeHoog, Judge.^*

SERCOMBE, P. J.

This case concerns whether the Land Use Board of Appeals (LUBA) erred in affirming a county hearings officer's approval of a subdivision application. Petitioner contends that LUBA erred in sustaining the hearings officer's interpretation of two code provisions applicable to the application, one that bars a refiling of "the same or substantially similar [subdivision approval] application" within two years of the "final denial" of an earlier application, and the other that requires preservation of "significant clumps or groves of trees" in a subdivision plat "whenever feasible" and consistent with the "needs of the development." On review, we conclude that LUBA's interpretation of the intended meaning of the ordinances and its understanding of its substantial evidence standard of review were correct, and, accordingly, affirm.¹

We take the uncontested facts from the LUBA opinion under review and from a previous opinion of this court on a related development application, Lennar Northwest, Inc. v. Clackamas County , 280 Or.App. 456, 380 P.3d 1237 (2016), rev. den. , 360 Or. 752, 388 P.3d 722 (2017). Respondent Lennar Northwest, Inc. (Lennar),

"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."

Id. at 458, 380 P.3d 1237 ; see ZDO 315.04 (Table 315-2).

In Lennar Northwest, Inc. , Lennar sought a zone change from R-10 to Immediate Urban Low Density Residential R-8.5 (R-8.5), a zoning district that generally requires a minimum lot size of 8,500 square feet, to increase the number of lots in a proposed subdivision plat, and also sought approval of a 72-lot flexible lot subdivision and an associated stormwater outfall. The county denied all three of the applications in a consolidated order, concluding that an approval criterion for the zone change, pertaining to the "need for neighborhood preservation," see id. at 461, 380 P.3d 1237, was not satisfied, and that the associated subdivision and stormwater facility applications should be summarily denied because their approval depended upon the denied upzoning. On review, LUBA remanded the denials, concluding that the hearings officer improperly applied the rezoning criteria. We affirmed LUBA's decision to remand. Id. at 471, 380 P.3d 1237.

While review of the denials of the applications was pending, Lennar filed a second subdivision-approval application with the county, this time under the unchanged R-10 zoning. That application proposed a 62-lot subdivision with larger lots, fewer vehicle trips per day, additional on-street parking, wider streets, a dedicated tract for the tree stand adjacent to the river, and a different stormwater detention system. Both the R-8.5 subdivision and the subject R-10 subdivision, however, had the same street alignment and both allowed development of lots in the middle of the subdivision in place of several stands of trees.

Before the hearings officer, petitioner contended that the subdivision application was inconsistent with various code-approval criteria, including ZDO 1307.16(K), which prohibits, with some exceptions, a second application for the "same or substantially similar" permit or approval during the two years following the final denial of the initial application.²

The hearings officer concluded that the two subdivision-approval applications in question—the earlier subdivision proposed on R-8.5 zoned property and the current one on R-10 zoned property—were not substantially similar because the later request sought approval of a reduced number of lots (72 to 62 lots), an increase in the average lot size (from 7,828 square feet to 9,669 square feet), 100 fewer vehicle trips per day, additional on-street parking, and a different stormwater detention system. In the view of the hearings officer, the most significant difference between the applications was that the first application was based on a higher-density zoning (R-8.5) and the later request was for a lower-density subdivision of land under the R-10 zoning that remedied the zoning-inconsistency reason for denying the first application.

Before LUBA, petitioner asserted that the hearings officer had incorrectly concluded that the two applications were not substantially similar. According to petitioner, "[t]here is little doubt that the two applications are substantially similar—both applications involved residential subdivisions of over 60 lots, with a similar functional layout of streets and utilities." Specifically, petitioner contended that ZDO 1307.16(K) pertains to whether the subsequent application is " 'substantially similar,' not whether the applications are 'substantially different.' The key is not what is different, but what is the same."

LUBA upheld the hearings officer's interpretation of "substantially similar" as involving a "high degree of similarity." Quoting from one of its own earlier cases in which it had construed the same ZDO provision, Henkel v. Clackamas County , 56 Or. LUBA 495, 501 (2008), LUBA concluded that "substantial similar[ity]" required more equivalence than mere similarity:

" 'By preventing the refiling of applications that are "substantially similar" the ZDO requires a greater degree of similarity than would be required if the standard were merely "similar" applications. In other words, applications must not only be similar, they must be very similar. We agree with petitioner that the plain meaning of "substantially similar" is that under [ZDO 1307.16(K) ] a second application is barred within two years of the first application's denial only when there is a high degree of similarity.' "

LUBA concluded that the hearings officer properly applied the "high degree of similarity" test "because of the many ways in which [the] R-10 Subdivision application does not have a high degree of similarity to the R-8.5 Subdivision application."

On review, petitioner contends that LUBA's decision is unlawful in substance, see ORS 197.850(9)(a), because its substantial similarity test focuses more on the differences in the applications' contents than on the similarities between the two proposals. Petitioner argues that the applications are "almost exactly the same—a substantial residential subdivision of large-lot homes with minimal tree preservation, the same street layout and same utility structure, and the same removal of the historic Jennings Lodge Retreat."

According to petitioner, a test that focuses on the similarities between the two applications is compelled by our construction of an analogous code provision in Wal-Mart Stores, Inc. v. City of Oregon City , 204 Or.App. 359, 129 P.3d 702, rev. den. , 341 Or. 80, 136 P.3d 1123 (2006). We reject that contention. In Wal-Mart Stores, Inc. , we did not analyze the correct construction of an analogous "substantially similar" provision. Instead, we merely deferred to the city's interpretation of the provision in question as plausible under ORS 197.829.³

In Wal-Mart Stores, Inc. , the company applied for site plan approval of a large commercial retail development as well as a comprehensive plan and zone change from residential to commercial for the surrounding properties to allow those properties to share in the planned parking lot for the st ore. 204 Or.App. at 361, 129 P.3d 702. The City of Oregon City held a hearing on, and then denied, the plan and zone change request, and then denied the site plan approval because it was contingent on the rezoning being allowed. A short time later, Wal-Mart submitted a new site plan approval application that revised the parking plan by adding multi-level parking and eliminated the parking for the adjacent properties. The city applied a code provision that limited reapplication for a denied "proposal":

" '[I]f the application is denied or withdrawn following the close of the public hearing, no reapplication for the same or substantially similar proposal may be made for one year following the date of final decision denying the permit.' "

Id. at 362, 129 P.3d 702 (quoting Oregon City Municipal Code 17.50.220). The city commission interpreted the provision to " 'focus on the use being proposed and the impacts on the city's citizens; not on the reason for denial of the previous proposal or what parts of the previous proposal might be missing from the second proposal.' " Id . (emphasis in Wal-Mart Stores, Inc. ). Because the second site plan approval application proposed " 'largely cosmetic changes [that] do not change the "substance" of the use proposed or the impacts of the use on the City,' " the commission denied the application as untimely. Id. at 362-63, 129 P.3d 702.

LUBA rejected the commission's reasoning, concluding that the subject matter of the new application " 'must have been actually considered in the prior application that was denied or withdrawn.' " Id . at 363, 129 P.3d 702. On review, we concluded that LUBA had erred in failing to defer to the commission's...