Siporen v. City of Medford

• Decision Date: 04 November 2009
• Docket Number: 2008185.,A142541.
• Citation: 231 Or. App. 585,220 P.3d 427
• Parties: Wendy SIPOREN, Ivend Holen and Medford Citizens for Responsible Development, Respondents, v. CITY OF MEDFORD and Wal-Mart Stores, Inc., Petitioners.
• Court: Oregon Court of Appeals

220 P.3d 427

231 Or. App. 585

Wendy SIPOREN, Ivend Holen and Medford Citizens for Responsible Development, Respondents, v. CITY OF MEDFORD and Wal-Mart Stores, Inc., Petitioners.

2008185.

A142541.

Court of Appeals of Oregon.

Argued and Submitted August 11, 2009.

Decided November 4, 2009.

John R. Huttl, Medford, argued the cause and filed the brief for petitioner City of Medford.

Gregory S. Hathaway, Portland, argued the cause for petitioner Wal-Mart Stores, Inc. With him on the brief were Jeff N. Evans and Davis Wright Tremaine LLP.

Kenneth D. Helm, Portland, argued the cause and filed the brief for respondents.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.

HASELTON, P.J.

Respondent City of Medford (the city) and intervenor-respondent Wal-Mart Stores, Inc. (Wal-Mart) seek judicial review of an order of the Land Use Board of Appeals (LUBA) in which LUBA remanded the city's decision to approve a site development plan without requiring a more comprehensive traffic impact analysis than the one Wal-Mart provided. ORS 197.850(1). On judicial review, the legal issue is whether LUBA, pursuant to ORS 197.829, was required to affirm the city's interpretation that its code does not require a more comprehensive traffic impact analysis under these circumstances. Because we conclude that the city's decision is not "inconsistent with the express language" of the city's code, ORS 197.829(1)(a), LUBA's order is unlawful in substance, ORS 197.850(9)(a). Accordingly, we reverse.

Because it provides context for the parties' contentions, before turning to the facts, we explain the general structure of the Medford Land Development Code (MLDC) and the specific code provisions that inform the central issue in this case—viz., whether a comprehensive analysis of the traffic impacts resulting from Wal-Mart's proposed store is necessary before the city may approve Wal-Mart's site plan and architectural review application.¹

The MLDC is divided into six articles. Three articles are pertinent to our review— that is, Article I, Article II, and Article IV.

The city and Wal-Mart's interpretation of the code relies primarily on the provisions in Article II, the purpose of which is "to designate and define the responsibilities of the approving authorities and to set forth the procedural requirements and substantive criteria for plan authorizations and the development permit." MLDC 10.100. Article II provides for 13 different types of review, including site plan and architectural review as well as the review of zone changes. Those two distinct types of review are governed by different provisions of the MLDC.

The Site Plan and Architectural Commission (SPAC) conducts site plan and architectural review, which is governed by four provisions of the MLDC—that is, MLDC 10.285, 10.287, 10.290, and 10.291. MLDC 10.285 generally describes the site plan and architectural review process and provides, in part:

"* * * The Site Plan and Architectural Review process is established in order to provide for review of the functional and aesthetic adequacy of development and to assure compliance with the standards and criteria set forth in this chapter for the development of property as applied to the improvement of individual lots or parcels of land as required by this code.

"Site Plan and Architectural Review considers consistency in the aesthetic design, site planning and general placement of related facilities such as street improvements, off-street parking, loading and unloading areas, points of ingress and egress as related to bordering traffic flow patterns, the design, placement and arrangement of buildings as well as any other subjects included in the code which are essential to the best utilization of land in order to preserve the public safety and general welfare, and which will encourage development and use of lands in harmony with the character of the neighborhood within which the development is proposed."

(Emphasis added.)

Relatedly, MLDC 10.287 defines the content of a site plan and architectural review application. Generally, an application must contain particular information concerning landscaping and building construction. In addition to an architectural plan, the building construction section of the application requires site plan information, including information about (1) "[e]xisting and proposed off-street parking: location, number, type and dimensions of spaces, parking area, internal circulation pattern"; (2) "[a]ccess: pedestrian, vehicular, service, points of ingress and egress"; (3) "[s]treet dedication and improvements"; and (4) "[l]ocation of existing public improvements including streets, curbs, sidewalks, street trees, utility poles, light fixtures, traffic signs and signals, and such other data as may be required to permit [SPAC] to make the required findings."

The nature of those findings is contained in MLDC 10.290. That provision states, in pertinent part:

"[SPAC] shall approve a site plan and architectural review application if it can find that the proposed development conforms, or can be made to conform through the imposition of conditions, with the following criteria:

"(1) The proposed development complies with the applicable provisions of all city ordinances."²

(Emphasis added.)

Finally, under MLDC 10.291, the conditions that SPAC may impose include "[r]equiring the installation of appropriate public facilities and services and dedication of land to accommodate public facilities when needed"; "[r]equiring the improvement of an existing, dedicated alley which will be used for ingress or egress for a development"; and "[c]ontrolling the number and location of parking and loading facilities, points of ingress and egress and providing for the internal circulation of motorized vehicles, bicycles, public transit and pedestrians[.]"

In sum, the text of MLDC 10.285 and 10.287 demonstrates that SPAC is authorized to consider consistency in the aesthetic design, site planning, and general placement of related facilities. Specifically, SPAC reviews, inter alia, (1) the placement of facilities (e.g., bus pull outs) as they relate to a specific site plan, (2) ingress and egress from the site, and (3) the movement of vehicles and pedestrians within the site. However, the express wording of the code provisions circumscribing SPAC's authority do not indicate that SPAC has broad authority to determine the adequacy of street capacity for development that constitutes a permitted use within the zone.

Instead, the adequacy of street capacity is determined during the review of zone changes, which is governed by an entirely separate provision, MLDC 10.227. Specifically, MLDC 10.227 provides that the Planning Commission—not SPAC—"shall approve a quasi-judicial zone change" if it finds, among other things, that the zone change complies with certain criteria.

One of those criteria is that the applicant demonstrate that "Category A urban services and facilities are available or can and will be provided, as described below, to adequately serve the subject property with the permitted uses allowed under the proposed zoning * * *." MLDC 10.227. Among the requirements of "Category A urban services and facilities" in MLDC 10.227(2) are:

"(b) Adequate streets and street capacity must be provided in one (1) of the following ways:

"(i) Streets which serve the subject property, as defined in Section 10.461(2), presently exist and have adequate capacity; or

"(ii) Existing and new streets that will serve the subject property will be improved and/or constructed, sufficient to meet the required condition and capacity, at the time building permits for vertical construction are issued; or

"(iii) If it is determined that a street must be constructed or improved in order to provide adequate capacity for more than one (1) proposed or anticipated development, the Planning Commission may find the street to be adequate when the improvements needed to make the street adequate are fully funded."³

In sum, MLDC Article II allocates authority among different decision-making entities. The Planning Commission has authority to determine the adequacy of street capacity to serve permitted uses before approving a zone change. Conversely, in reviewing a site plan application, SPAC has authority to consider consistency in the aesthetic design, site planning, and general placement of related facilities.

Unlike Article II, which allocates authority among decision-makers, MLDC Article I contains provisions that "apply to the general provisions, administration and enforcement" of the MLDC, including broad definitions of the terms "development" and "developer" on which petitioners rely, and Article IV contains provisions that apply to "the establishment and application of development standards for public improvements." MLDC 10.007. Of particular pertinence to our review here, Article IV includes MLDC 10.460 to 10.462, the code provisions that petitioners invoke—and on which LUBA relied—as precluding the city from approving the site plan without requiring a more comprehensive traffic impact analysis than the one Wal-Mart provided.

Among other things, a TIA "identif[ies] the traffic impacts that a proposed development will have on the existing and future street network" and "determines all improvements or mitigation measures necessary to maintain adequate [levels of service] at study area intersections and ensure safe pedestrian and vehicular ingress to and egress from the transportation system."⁴ MLDC 10.460. A TIA is required when "a proposed application has the potential of generating more than 250 net average daily trips * * * or the Public Works Department has concerns due to operations or accident history, a TIA will be required to evaluate development impacts to the transportation system."

MLDC 10.461(3). Nonetheless, "[t]he level of detail and scope of a[TIA] will vary with the size, complexity, and location of the proposed...