Settlemier v. City of Albany, LUBA No. 2020-106

• Decision Date: 27 May 2021
• Docket Number: LUBA No. 2020-106
• Parties: CAMRON SETTLEMIER, Petitioner, v. CITY OF ALBANY, Respondent.
• Court: Oregon Land Use Board of Appeals

CAMRON SETTLEMIER, Petitioner, v. CITY OF ALBANY, Respondent.

LUBA No. 2020-106

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

May 27, 2021

FINAL OPINION AND ORDER

Appeal from City of Albany.

Camron Settlemier filed the petition for review and reply brief and argued on behalf of himself.

M. Sean Kidd filed the response brief and argued on behalf of respondent.

RYAN, Board Member; RUDD, Board Chair, participated in the decision.

ZAMUDIO, Board Member, did not participate 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 Ryan.

NATURE OF THE DECISION

Petitioner appeals Ordinance 5947, which amends the Albany Development Code.

BACKGROUND

In August 2020, the city initiated proceedings to amend various provisions of the Albany Development Code (ADC). The amendments are "related to improving clarity and consistency with state law, establishing clear and objective standards and criteria for residential development and a two-track system for review of residential applications, and improving the overall functionality of the design standards applicable to commercial and institutional development." Supplemental Record 6.¹ The planning commission held a public hearing on the amendments and voted to recommend approval to the city council. The citycouncil held a public hearing on the amendments and, at the conclusion, voted to adopt the amendments. This appeal followed.

ASSIGNMENT OF ERROR

ORS 197.835(7)(a) requires LUBA to reverse or remand an amendment to a land use regulation that is "not in compliance with the comprehensive plan." Petitioner's single assignment of error is exceedingly difficult to follow and includes undeveloped and underdeveloped arguments. We address the assignment of error to the extent that we understand it.

We understand petitioner to argue that some of the amendments do not comply with Albany Comprehensive Plan (ACP) Goal 5, Policy 3(c); ACP Goal 5, Implementation Method 7(c); and ACP Goal 5, Implementation Method 8.²

A. Former ADC 2.450(5) (Jan 1, 2015)

Under former ADC 2.450(5) (Jan 1, 2015), in order to grant site plan review approval, the city must conclude that "[t]he design and operating characteristics of the proposed development are reasonably compatible with surrounding development and land uses, and any negative impacts have been sufficiently minimized." The amendments renumbered former ADC 2.450(5) (Jan 1, 2015) as ADC 2.455(3) and limited its applicability to site plan review applications for non-residential development. Petitioner argues that that amendment means that the ADC fails to comply with ACP Goal 5, Policy 3(c), and ACP Goal 5, Implementation Method 8, because the city did not replace ADC 2.450(5) with an equivalent standard applicable to residential development that is clear and objective. The city responds that the city council is not obligated to replace ADC 2.450(5) with an equivalent objective standard applicable to residential development as long as the decision and the ADC remain in compliance with the ACP. We agree. Petitioner has not pointed to anything that requires the city to adopt an equivalent standard applicable to residential development, and they have not explained why removing ADC 2.450(5) from the standards applicable to residential development means that the decision is not in compliance with the ACP.

B. ADC 8.140

Next, we understand petitioner to argue that unspecified amendments to ADC 8.140 (Oct 14, 2017) fail to comply with Goal 5, Implementation Method8. ADC 8.140 contains "Additional Standards for Infill and Redevelopment" and includes several subsections that regulate setbacks, garages and carports, and building height. Record 373-83. Petitioner does not develop any argument explaining why ADC 8.140, as amended, fails to comply with ACP Goal 5, Implementation Method 8, and we will not develop their argument for them.³ Deschutes Development v. Deschutes Cty., 5 Or LUBA 218, 220 (1982).

C. ACP Goal 5, Implementation Methods 7 and 8

We also understand petitioner to argue that the city council erred in concluding that ACP Goal 5, Implementation Methods 7 and 8, do not apply to the amendments. The city council concluded:

"[Implementation Method] 7 is not applicable to the proposed amendments because Article 7 of the ADC provides regulations to enhance the preservation of historic structures and districts. Proposed amendments in Article 7 are limited to the name of the Landmarks Commission, and general formatting such as cross references and naming conventions. No changes are proposed to Article 7 that are applicable to [Implementation Method] 7." Record 140.

The city council also concluded that "[t]he proposed code amendments do not propose changes to the zoning district boundaries; therefore, [Implementation Method] 8 is not applicable." Id.

We understand petitioner to argue that Implementation Method 7 is intended to protect both historic districts and historic structures located outside of historic districts; that, while ADC article 7, governing the Historic Overlay District, applies only to historic districts, ADC article 8, governing Design Standards, applies to historic structures located outside of historic districts; and that unspecified amendments to ADC article 8 are inconsistent with Implementation Method 7. We also understand petitioner to argue that the amendments to ADC article 8 constitute a "zone change" within the meaning of Implementation Method 8. See n 2.

The city council concluded that the amendments are consistent with ACP Goal 5, its policies, and its implementation methods because the provisions in ADC article 8 continue to protect the city's historic resources that are not located in historic districts. Record 141. Petitioner does not explain why the city council's conclusion that Implementation Method 7 does not apply where no changes are proposed to ADC article 7 is incorrect. In addition, we agree with the...