HomeMy WebLinkAboutApplication Miscellaneous 2/27/2008
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BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
Appeal from City of Springfield.
SCOTI E. OLSON,
Petitioner,
vs.
CITY OF SPRINGFIELD,
Respondent.
LUBA No. 2007-201
FINAL OPINION
AND ORDER
Scott E. Olson, Springfield, filed the petition for review and argued on his own
behalf.
Allen L. Johnson, Portland, and Joseph J. Leahy, Springfield, filed the response brief
and argued on behalf of respondent. With them on the brief were Johnson & Sherton, PC
and Leahy & Cox, LLP.
HOLSTUN, Board Chair; BASSHAM, Board Member; RYAN, Board Member,
participated in the decision.
AFFIRMED
02/26/2008
You are entitled to judicial review of this Order. Judicial review is governed by the
provisions ofORS 197.850.
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2 NATURE OF THE DECISION
Opinion by Holstun.
3 Petitioner appeals a city ordinance that vacates a portion of a street right-of-way.
4 FACTS
5 The ordinance that is before us in this appeal is one of a number of actions the city
6 has taken in preparation for construction of a new Justice Center. The petition for review
7 sets out the key events that preceded the ordinance that is before us in this appeal:
8 "The [C]ity of Springfield voters approved a Measure 20-91 in November,
9 2004 for the construction of a new Municipal Justice Center on the city owned
10 site of the existing police and municipal court facilities. The ballot measure
11 indicated that the city might need to, utilize the right-of-ways of both 4th and B
12 Streets for the construction. In July of 2005 the city entered into a * * *
13 personal services contract with Liebert and Associates for planning of the
14 Justice Center. The city council approved the Functional and Space Program
15 for the Justice Center Facility on November 28, 2005 *. * *. The city
16 approved * * * a Development Code Amendment to Article 23 of the
17 Springfield Development Code (SDC) on February 6, 2006 which added
18 Justice Centers as an allowed use in the [Public Land and Open Space] PLO
19 I)istrict. On April 18, 2006 the city concurrently approved [a] Zone Change *
20 * * and Discretionary Use * * * (with conditions) to provide for the Justice
21 Center construction. A Site Plan Review * * * Decision for the Justice Center
22 was issued by the city on July 25, 2006. The city amended [SDC] Article 9, *
23 * * on April 2, 2007, which modified the right-of-way vacation approval
24 criteria for publicly owned facilities. Finally the city approved * * * Vacation
25 of the Public Right of Way on September 17,2007.
26 "B Street is designated as a collector street on the Street Functional
27 Classification Map of the Comprehensive Plan. It intersects with the arterial
28 street, Pioneer Parkway East immediately adjacent to the proposed Justice
29 Center site. The Justice Center site is within a Nodal Development Overlay
30 zone which emphasizes street connectivity, and pedestrian and bicycle
31 facilities. The city has vacated a portion of B Street to accommodate a secure
32 parking area and a storage building associated with the construction of a new
33 Justice center." Petition for Review 2-3.
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1 FIRST ASSIGNMENT OF ERROR
2
A.
Petitioner's Argument
3 . As relevant here, the approval criteria for vacating subdivisions, partitions and rights-
4 of-way appear at SDC Aiticle 9.1 Before it was amended on April 2, 2007, SDC 9.060(2) set
5 out the following approval criteria for right-of-way vacations:
6 "Where the proposed Vacation of public rights-of-way, other City property, or
7 Partition or Subdivision Plats is reviewed under Type IV procedure, the City
8 Council shall approve, approve with conditions, or deny the Vacation
9 application. The application shall be approved if the Vacation is found to be
10 consistent with the following approval criteria.
11
12
13
14
"(a) The Vacation shall be in conformance with the Metro Plan, TransPlan,
the Conceptual Local Street Map and adopted Functional Plans, and
applicable Refinement Plan diagram, Plan District map, or Conceptual
Development Plan;
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17
"(b) The Vacation shall not conflict with the provisions of Springfield
Municipal Code, 1997; and this Code, including but not limited to,
street connectivity standards and block lengths; and
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"(c) There shall be no negative effects on access, traffic circulation,
emergency service protection or any other benefit derived from the
public right-of-way, publicly owned land or Partition or Subdivision
Plat."
22 Petitioner contends that the April 18, 2006 Zone Change and Discretionary Use
23 decisions, the July 25,2006 Site Plan Review decision and the April 2, 2007 Vacation
24 decision described above all fail to address:
25 "1. The functional classification of B Street as a collector street, 2. The
26 connectivity requirements Qfthe Nodal Development Overlay zone, or 3. The
27 maximum block length standards ofthe SDC." Petition for Review 4.
28 Petitioner contends the vacation decision that is the subject of this appeal is inconsistent with
29 the Metro -Plan and TransPlan because B Street is a designated collector street. Petitioner
1 The SDC was amended and recodified on September 18, 2007. All citations in this opinion are to
pre-September 18, 2007 versions ofthe SDC.
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. also argues that the vacation is inconsistent with other plan policies and SDC standards that
2 promote pedestrian ways, bicycle transportation and street connectivity. Petitioner cites to a
3 city planning staff report that was prepared during the proceedings that led to the April 18,
4 2006 Zone Change and Discretionary Use decisions where planning staff acknowl~dged that
5 plan amendments and variances would be needed to vacate the B Street right-of-way:2
. 6 Petitioner contends he submitted 16 pages of testimony detailing his position that the
7 vacation violates comprehensive plan and SDC transportation planning standards during the
8 proceedings that led to the April 18, 2006 Zone Change and Discretionary Use decisions and
9 those concerns were summarily dismissed by the city:
10 "The issues raised by [petitioner] pertain almost exclusively to the proposed
11 street vacation and block length variance applications that would be referred
12 to the Planning Commission for a recommendation at a future public hearing,
13 prior to being presented to City Council at another public hearing meeting.
14 Staff is unable to respond to these issues as the Discretionary Use and Zone
15 Change request criteria do not have any direct relationship to the Metro Plan
16 and Trans Plan transportation go~ls, objectives and policies." Record 1505.
.17 Petitioner also argues that the city granted Site Plan Approval on July 25, 2006 and issued
. 18 buildirig permits, notwithstanding that the April 18, 2006 Discretionary Use decision
19 included a condition of approval that the B Street right-of-way was. to be vacated prior to Site
20 Plan Review approval.
2 A March 21, 2006 staff report included the following:
"Additional Annrovals
,
"The subject applications are the first steps in a series of development applications for
Planning Commission and Council consideration in order to allow development of a Justice
Center at the proposed location. If the Planning Commission approves the Discretionary Use
and Zoning Change requests, an application would be taken to Council for a. Type II
TransPlan amendment to remove the affected portion of B Street from the collector street
network. Application also would be required to have the affected portions of B Street, 4th
Street, and the alley between A and B Street vacated. If a TransPlan amendment application
is submitted, the Planning Commission would be required to provide a recommendation to
City Council on that matter and proposed street and alley vacations. A variance to the block
length requirement also would be required upon vacation of B Street between Pioneer
, Parkway East and 4th Street, as the peri~eter travel distance would exceed the parameters
established by the SDC." Record.l9l1-12. '
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1 Finally, petitioner argues:
2 "Ironically, the petitioner's testimony which was dismissed as irrelevant to the
3 Discretionary Use approval and relevant only to the street vacation was
4 ultimately dismissed by the city as irrelevant to the new approval criteria for
5 the vacation of the street. The city has failed to establish that the street
6 closure conforms with the comprehensive plan and zoning requirements.",
7 Petition for Review 8.
8 We understand petitioner to argue the city should have applied the vacation criteria that
9 appear at SDC 9:060(2), which would have required the city to directly address his
10 contentions that the disputed vacation is inconsistent with the city's adopted comprehensive
11 plan and the SDC, rather than the vacation criteria that the city adopted on April 2, 2007"
12 which appear at SDC 9.060(3) and do not require that the city directly apply its
13 comprehensive plan, the Springfield Municipal Code or the "no negative effects" on
14 transportation facilities standard that appears at SDC 9.060(2)( c). 3
15
B.
Unappealed Decisions
16 We turn first to petitioner's arguments that the city committed errors in adopting the
17 April 18,2006 Zone Change and Discretionary Use decisions and the July 25, 2006 Site Plan
18 Review decision. Those decisions are not before us in this appeal. Those decisions could
19 have been appealed to LUBA and in those appeals petitioner could have assigned error to
20 any aspects of those decisions that ,petitioner believes are inconsistent with the
21 comprehensive plan, the SDC or any other legal requirement. Those decisions were not
22 appealed, and petitioner may not assign error to those decisions in this appeal. Sahagian v.
23 Columbia County, 27 Or LUBA 341, 344 (1994); Corbett/Terwilliger Neigh. Assoc. v. City
24 of Portland, 16 Or LUBA 49, 52 (1987).
25 Similarly, the April 2, 2007 decision that amended SDC 9.060 by adding a new
26 subsection (3) was not appealed. As discussed below, that amendment apparently was
3 We set out the text ofSDC 9.060(3) and discuss that section of the SDC later in this opinion.
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1 adopted specifically to avoid the SDC 9.060(2) requirement that the city's comprehensive
2 plan and the SDC be applied directly as approval criteria for certain vacation decisions.4
3 Because the April 2, 2007 decision was not appealed and is not before us in this appeal, the
4 legal propriety of amend~ng SDC 9.060 to eliminate any requirement under SDC 9.060 that
5 the city's comprehensive plan or SDC transportation standards be applied directly when
6 vacating rights-of-way in certain circumstances is not before us in this appeal.
7
C.
The N ew Vacation Criteria
8 The April 2, 2007 amendment to SDC 9.060 added a new subsection (3), which
9 appears immediately after SDC 9~060(2) quoted above. SDC 9.060(3) provides asfollows:
10 "Notwithstanding the provisions of Section 9.060(2), where the land affected
11 by the proposed Vacation of public right-of-way, other public land as
12 specified in ORS 271.080, or public easement will remain in public ownership.
13 and will continue to be used for a public purpose, the request shall be
14 reviewed under the Type IV procedure. The City Council may approve the
15 Vacation application if it is found to be consistent with the following criteria:
16
17
"(a) The Vacation was initiated by the City Council pursuant to ORS
271.130(1);
18
"(b) Notice has been given pursuant to ORS 271.110(1);
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"(c), Approval of the, vacation would be consistent with provision of safe,
convenient and reasonably direct routes for cyclists, pedestrians and
vehicles as provided in OAR 660-012-0045(3);
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23
"(d) Whether a greater public benefit would be obtained from the vacation
than from retaining the right-of-way in its present status; and
24
25
"(e) Whether provisions have been made to ensure that the vacated
property will remain in public ownership."
26 According to the city, under its charter, the April 2, 2007 amendment took effect 30 days
27 after it ~as adopted, on May 2, 2007. The city submitted notice to the Department of Land
4 Apparently, notwithstanding that pianning staff indicated during the Zone Change and Discretionary Use
proceedings that the comprehensive plan and SDC would be applied directly when it came time to vacate the B
Street right-of-way, the city instead decided to amend the city's right-of-way vacation criteria to eliminate that
requirement by adopting SDC 9.060(3).
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1 Conservation and Development of that amendment on April 5, 2007, pursuant to ORS
2 197.615(1). By operation of law, that amendment was acknowledged to be in compliance
3 with the statewide planning goals on April 26, 2007. ORS 197.197.625(1)(a). The
4 application to vacate the B Street right-of-way was submitted on May 11,2007. There does
5 not appear to be any dispute that the vacated right-of-way "will remain in public ownership
6 and will continue to be used for a public purpose." The city argues it correctly applied SDC
'1 9.060(3) rather than SDC 9.060(2). We agree with city.
8 Petitioner argues 'the city should be required to apply SDC 9.060(2) rather than SDC
.9 9.060(3), but offers no reaso~ for that position that is cognizable in this appeal. As we have
10 already explained, the April 2, 2007 ordinance that adopted SDC 9.060(3) is not before us in
11 this appeal, and any errors the city may have committed in adopting those amendments are
12 beyond our scope of review in this appeal. SDC9.060(3) took effect before the application
13 to vacate B street was submitted. SDC 9.060(3) unambiguously applies to that application in
14 place of SDC 9.060(2). Petitioner's position that the city should be required to apply the
15 SDC 9.060(2) crite.ria to the disputed vacation is flatly inconsistent with the text of SDC
16 9.060. Petitioner identifies no other legal authority that would require the city to apply its
17 comprehensive plan or the SDC directly to the disputed vacation. Because petitioner
18' . identifies no legal authority that requires the city to apply its comprehensive plan and SDC
19 transportation policies and standards to the disputed vacation, petitioner's first assignment of
20 error provides no basis for reversal or remand.
21 The first assignment of error is denied.
22~ SECOND ASSIGNMENT OF ERROR
23 Under his second assignment of error, petitioner challenges the city's findings that
24 the disputed vacation complies with the new SDC 9.060(3) criteria.s
5 Petitioner's challenge is limited to SDC 9.060(3)(c), (d) and (e).
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1
A.
SDC 9.060(3)(c)
2 SDC 9.060(3)(c) requires that the city find that "[a]pproval of the vacation would be
3 consistent with provision of safe, convenient and reasonably direct routes for cyclists,
4 pedestrians and vehicles as provided in OAR 660-012-0045(3)." Petitioner contends that
5 rather than apply this standard from OAR 660-012-0045(3) the city should apply its
6 comprehensive plan and SDC transportation policies that were adopted in part to comply
7 with the rule. Petitioner also contends that the city's finding "that right-of-way vacation will
8 not compromise safe, convenient and reasonable direct routes for cyclists, pedestrians and
9 vehicles as provided in OAR 660-012-0045(3)" is "preposterous when what is befng
10 considered is the closure of a collector street in a Nodal Development zone." Petition for
11 Review 14;
12 Neither ofthe above argument provides a basis for reversal or remand. As we have
13 already explained, SDC 9.060(3) was in effect when the disputed vacation application was
14 submitted, 'and the city did not err by applying the SDC 9.060(3) criteria rather than the SDC
15 9.060(2) criteria. With regard to petitioner's findings challenge, petitioner must do more
16 than quote a portion of the city's fmding concerning SDC 9.060(3)(c) and claim the finding
17 is preposterous. The part of the city's findings that petitioner does not acknowledge points
18 out that trips with origins and destinations beyond the linear alignment ofB Street will not be
19 affected and the trips that will be affected will have out-of-direction travel of no more than
20
. 6'
600 feet.. While petitioner clearly has a different view of the significance of that
6 The entire finding is set out below:
I
"In accordance with SDC 9.060(3)(c), approval of the vacation would not compromise safe,
convenient and reasonably direct routes for cyclists, pedestrians and vehicles as provided in
OAR 660-012-0045(3). As described in the above findings, the out-of~direction travel
distance for vehicles, cyclists and pedestrians is not expected to be more than 600 feet. The
out-of-direction travel distance is minimal or non-existent for trips with origins and '
destinations outside the linear alignment of the street containing the vacated area." Record
20.
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1 out-of-direction travel, he must do more than claim that the city's contrary position IS
2 preposterous.
3 This subassignment of error is denied.
4
B.
SDC 9.060(3)(d)
5 Under SDC 9.060(3)(d), the city was required to find "a greater public benefit would
6 be obtained from the vacation than from retaining the right-of-way in its present status[.]"
7 The SDC 9.060(3)(d) "greater public benefit" standard is extremely subjective and calls for
8 an exercise of judgment by the city. The city adopted several findings to explain its
9 conclusion that the proposed vacation would result in a greater public benefit. The vacated
.1 0 right-of~way will allow construction of an adjacent secure parking area and "an ancillary
11 building for retaining police and court records, evi~ence, recovered items, and police
12 equipment." Record 32. The challenged decision cites evidence of "[d]amage and
13 vandalism to police vehicles" and a need to deter such damage as one justification for the
14 secure parking area Record 31 (finding 31). The decision also finds that a secure parking
15 area next to the police station will allow quicker response times and increase officer safety
16 by eliminating the need to cross B Street to respond to police calls. Record 32 (finding 32).
17 The city also found that the secure parking area could also function as a "contained muster
18 area for prisoners" in the case of emergencies. !d. (finding 34). Regarding the ancillary
19 building, the city found that "[p ] roximity to the Justice Center and security of the ancillary
20 building is necessary to protect the integrity of its contents." [d. (finding 33).
.21
)
Petitioner disputes findings 31-34. However, although petitioner disparages. the
22. evidence that supports the city's findings that it needs a secure parking facility as
23 "anecdotal," petitioner does not dispute that there is evidence of such a need and cites no
24 contrary evidence. Petitioner disagrees with the cited need for. a secure ancillary building
25 but, again, cites no evidence that would undercut the city's cited need.
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1 In this review, petitioner must demonstrate that the city "improperly construed" SDC
2 ,9.060(3)(d) or that its findings addressing that criterion ~'are not supported by substantial
'3 evidence in the whole record." ORS 197.835(9)(a)(C) and (D). Petitioner has shown
4 neither. It is clear that petitioner places a higher value the B Street right-of-way than the
5 secure parking facility or' ancillary building. It is plain from petitioner's arguments on
6 review that he would have applied the SDC 9.060(3)(d) "greater public benefit" criterion
7 ,differently and reached a different conclusion about whether retaining the B Street public
8 right-of-way would result in the greater public benefit. However, the fact that petitioner
9 would have struck that balance differently than the city is not sufficient as a basis for reversal
10 or remand. Marine Street LLC v. City of Astoria, 37 Or LUBA 587,603 (2000); Mazeski v.
11 Wasco County, 28 Or LUBA 178, 188-89 (1994), aff'd 133 Or App 258, 890 P2d 455 (1995).
12 Given the subjective nature of the standard, it is unremarkable that reasonable persons could
13 strike the required balance differently . We cannot say, based on this record~ that the way the
14 city struck that balance was erroneous or unsupported ?y substantial evidence.
15 This subassignment of error is denied.
16
C.
SDC 9.060(3)(e)
17 Under this criterion the city must find t~at "provisions have been made to ensure that
18 the vacated property will remain in public ownership." The" city imposed a condition that the
19 vacated right-of-way would revert back to right-of-way if it ceased to be used as part of the
'20 Justice Center. Record 32. Petitioner does not challenge the adequacy of that condition to
21 ensure the vacation complies with SDC 9.060(3)(e). Instead, petitioner appears to challenge
22 applying a different standard for a vacation for a public purpose from the standard that would
23 apply under SDC 9.060(2) for a vacation for a private purpose. As we have already
, ,
24 explained, such a challenge might have provided a basis for reversal or remand of the April
25 2, 2007 decision to adopt SDC 9.060(3), but that challenge is simply not cognizable in this
26 appeal of the city's vacation decision that simply appliesSDC 9.060(3)(e).
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1 This subassignmet of error is denied.
2 The second assignment of error is denied.
3 TlllKD ASSIGNMENT OF ERROR
4 Under his final assignment of error, petitioner questions the adequacy and
5 completeness of the application, but offers no argument in support of the suggestion.
6 Petition for Review 20. Petitioner characterizes the vacation of a portion of B Street as
7 "destruction" of a largely intact grid street system without a valid reason for doing so.
8 Petitioner also cites the city's many decisions that preceded the vacation decision and
9 characterizes those decisions a manipulation of public involvement that had the result of
10 leaving the public out and ignoring the city's comprehensive plan and SDC transportation
11 planning policies and objectives. Petitioner argues the citizen advisory committee that was
12 appointed was not given an opportunity to provide meaningful input. Petitioner contends
.13 that planning staff have consistently been on the police bureau's side. Petitioner argues the
14 city has consistently refused to engage in meaningful consideration of alternatives that would
15 not require vacation of the B Street right-of-way. Petitioner contends the city's actions in
16 this matter demonstrate it was biased in favor of vacation of the B Street right-of-way from
J 7 the beginning. Because the city council was biased in this matter, petitioner suggests it
18 should have referred the matter to a hearings officer and it erred by failing to do so.
19 An appearance of bias is always possible when the city must grant itself land use
20 permits. Holladay Investors, Ltd. v. City of Portland, 22 Or LUBA 90, 94 (1991). However,
21 petitioner must demonstrate actual bias to provide a basis for reversal or remand, and he must
22 do so clearly. Lovejoy v. City of Depoe Bay, 17 Or LUBA 51, 65-66 (1988). LUBA does not
23 lightly infer bias on .the part of local government land use decision makers. Oregon
24 Entertainment Corp. v. City of Beaverton, 38 Or LUBA 440, 445 (2000); Gearhard v.
25 Klamath County, 7 Or LUBA 27,31 (1982); Northeast Neighborhood Association v. City of
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Salem, 4 Or LUBA 260, 261 (1981); Miller v. City of Portland, 2 Or LUBA 363, 367-68
r
2 (1981), aff'd 55 Or App 633, 639 P2d 680 (1982).
3 We do not agree with petitioner that the city's course of conduct in this matter
4 provides a sufficient basis for assuming the city council was biased in favor of the requested
5 vacation. The fact that city planning staff often did not agree with petitioner regarding the
6 importance of retaining the B Street right-of-way is not significant. It is not unusual for
7 planning staff to take a position on permit applications. Planning staffs view of the
8 importance of pres~rving the right-of-way provides .no basis for inferring bias on the part of
9 the city council, which was the decision maker in this matter. The city's council's decision
10 to amend SDC 9.060 to add SDC 9.060(3) suggests that the city recognized that approval of
11 the vacation might be difficult if the city was required to apply its comprehensive plan and
12 land use. regulation transportation policies and standards directly as approval criteria in
13 approving a vacation. Once again, in a properly filed appeal of the April 2, 2007 decision to
14 amend SDC 9.060 to add SDC 9.060(3), petitioner could have challenged the city's decision
15 to adopt far less stringent standards for vacating public rights-of-way in cases where the
16 rights-of-way will remain. in public use. But neither the city council's decision to adopt SDC
17 9.060(3) nor any of the other actions cited by petitioner provide a sUfficient basis for
18 concluding that the city council was biased in its approval of the vacation decision that is
19 before us in this appeal.
20 The third assignment of error is denied.
21 The city's decision is affirmed.
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