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Nicita v. City of Oregon City

Court of Appeals of Oregon

July 6, 2017

James J. NICITA, Petitioner Cross-Respondent,
v.
CITY OF OREGON CITY, Respondent Cross-Respondent, and Elizabeth GRASER-LINDSEY, Christine Kosinski, and Paul Edgar, Intervenors-Petitioners below, and HISTORIC PROPERTIES, LLC, Respondent Cross-Petitioner.

          Argued and submitted April 11, 2017.

         Land Use Board of Appeals 2016045

          James J. Nicita argued the cause and fled the briefs for petitioner-cross-respondent pro se.

          Seth King argued the cause for respondent-cross-petitioner Historic Properties, LLC. With him on the brief were Michael C. Robinson and Perkins Coie LLP.

          Carrie A. Richter argued the cause for respondent-cross-respondent City of Oregon City. With her on the brief was Bateman Seidel Miner Blomgren Chellis & Gram, P. C.

          Before DeVore, Presiding Judge, and Lagesen, Judge, and Duncan, Judge pro tempore.

         Case Summary: Petitioner seeks review of a decision of the Land Use Board of Appeals (LUBA) that remanded the City of Oregon City's decision to approve [286 Or.App. 660] comprehensive plan map and zoning map amendments for Historic Properties, LLC's property, based on its determination that the city's decision did not comply with Statewide Planning Goal 5. LUBA's order also sustained the city's determination that Historic Properties' application complied with Goal 2.3 (Corridors) of the Oregon City Comprehensive Plan. Petitioner contends that LUBA erroneously deferred to the city's interpretation of Goal 2.3 and that that aspect of LUBA's order lacks substantial evidence to support it. Historic Properties, which fled a cross-petition for review, asserts that LUBA erred in determining that the city failed to comply with Statewide Planning Goal 5. Held: LUBA did not err. The city's interpretation of Goal 2.3 is plausible and petitioner's substantial evidence arguments do not provide a basis to conclude that LUBA's order is "unlawful in substance" under ORS 197.850 (9) (a).

         Affirmed on petition and cross-petition.

         [286 Or.App. 661]

          DUNCAN, J. PRO TEMPORE

         Petitioner seeks judicial review of a final order of the Land Use Board of Appeals (LUBA). In that order, LUBA remanded the City of Oregon City's decision to approve comprehensive plan map and zoning map amendments for Historic Properties, LLC property. LUBAs remand was based on its determination that the city's decision did not comply with Statewide Planning Goal 5. As relevant here, LUBAs order also sustained the city's determination that Historic Properties' application complied with Goal 2.3 (Corridors) of the Oregon City Comprehensive Plan (OCCP). On review, petitioner challenges LUBAs latter conclusion, asserting that LUBA erroneously deferred to the city's interpretation of Goal 2.3 and that that aspect of LUBAs order lacks substantial evidence to support it. Historic Properties, which filed a cross-petition for review, challenges LUBAs determination that the city's decision failed to comply with Goal 5. We conclude that the city's interpretation of Goal 2.3 is plausible and that petitioner's substantial evidence arguments do not provide a basis for this court to conclude that LUBAs order is "unlawful in substance" under ORS l97.85O(9)(a). Except to the extent discussed below, we reject petitioner's other challenges and Historic Properties' challenge without further written discussion. Accordingly, we affirm.

         I. LEGAL CONTEXT

         An amendment to the Oregon City zoning map or comprehensive plan map may be initiated by an application to the planning division. Oregon City Municipal Code (OCMC) 17.68.010. To approve such an application, the city must find that the requested amendment is consistent with the goals and policies of the OCCP. OCMC 17.68.020 (for zone changes); see also Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or. 3, 18, 569 P.2d 1063 (1977) (holding that "when a comprehensive plan map is amended to change the permissible use of a single tract of land, without any change in the plan's underlying policies, the proponent of the change has the burden of proving that the change in the plan map is consistent with the goals and policies expressed in the plan as a whole"). One of those goals, Goal [286 Or.App. 662] 2.3 (Corridors), provides that the city should "[f]ocus transit-oriented, higher intensity, mixed-use development along selected transit corridors."

         The issues in this case pertain to whether LUBA correctly affirmed the city's determination that the proposed amendments met the requirements of Goal 2.3.

         II. PROCEDURAL HISTORY

         The city approved Historic Properties' application to amend the comprehensive plan map and zoning map designations for its property, which is located at the intersection of Highway 213 and Beavercreek Road in Oregon City. As explained in LUBA's order, that decision

"change[d] the existing Low Density Residential and Medium Density Residential comprehensive plan map designations for [the property] to the Mixed Use Corridor (MUC) comprehensive plan map designation. The *** decision also change[d] the existing R-3.5 Dwelling District, and R-6 and R-10 Single-Family Dwelling District zoning designations to the MUC-2 Mixed Use Corridor District zoning designation."

         That is, the city approved a change of the property's comprehensive plan map designation to MUC, which, as the OCCP explains, provides for

"higher density mixed uses that are supportive of transit and conducive to pedestrian traffic. Urban density residential and commercial goods and services are typical uses. Zones in the Comprehensive Plan Land-Use Map district are intended to be compatible with Metro's Corridor design type."

         And, the city approved a change of the property's zoning designation to MUC-2, which is described by OCMC 17.29.010:

"The Mixed-Use Corridor (MUC) District is designed to apply along selected sections of transportation corridors such as Molalla Avenue, 7th Street and Beavercreek Road, and along Warner-Milne Road. Land uses are characterized by high-volume establishments such as retail, service, office, multi-family residential, lodging, recreation and meeting facilities, or a similar use as defined by the community development director. A mix of high-density residential, office, and small-scale retail uses are encouraged in this District. Moderate density (MUC-1) and high [286 Or.App. 663] density (MUC-2) options are available within the MUC zoning district. The area along 7th Street is an example of MUC-1, and the area along Warner-Milne Road is an example of MUC-2."

         The city based the approval, in part, on its determination that the proposed amendments, "with conditions of approval, " complied "with the requirements of the [OCMC]" and with "the applicable Goal and Policies of the Oregon City Comprehensive Plan." With respect to Goal 2.3, the city determined that the application ...


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