Standard Insurance v. Washington County

761 P.2d 534, 93 Or. App. 78, 1988 Ore. App. LEXIS 1519
CourtCourt of Appeals of Oregon
DecidedSeptember 14, 1988
DocketLUBA 88-005; CA A48889
StatusPublished
Cited by3 cases

This text of 761 P.2d 534 (Standard Insurance v. Washington County) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Standard Insurance v. Washington County, 761 P.2d 534, 93 Or. App. 78, 1988 Ore. App. LEXIS 1519 (Or. Ct. App. 1988).

Opinion

RICHARDSON, P. J.

Petitioner seeks review of and respondent cross-petitions from LUBA’s remand of Washington County’s comprehensive plan map amendment redesignating petitioner’s property from industrial to neighborhood commercial (NC). Petitioner sought the change to allow the development of a supermarket and shopping center on property located at the intersection of N.W. Walker Road and N.W. 185th Avenue. Respondent owns undeveloped land at 185th Avenue and Cornell Road, which is in the vicinity of petitioner’s site and which is designated community business district (CBD). Uses of the kind planned by petitioner are permissible in the CBD as well as in the NC zone.

Both parties make two assignments of error. We agree with the conclusions and reasoning of LUBA which are challenged by petitioner’s second assignment and by both of respondent’s assignments of error. No discussion of those assignments is warranted. County concluded that petitioner had supported its application by demonstrating a “lack of appropriately designated suitable alternative sites within the vicinity for [the] proposed use,” as required by implementing strategy (g)(ii) to county’s Comprehensive Framework Plan (CFP) Policy 1.1 LUBA rejected that conclusion, and [81]*81petitioner’s first assignment concerns that ruling. County determined that, although the proposed use is permissible on respondent’s property, that property is not a suitable alternative site for the use. County further concluded that the change in designation and the supermarket-shopping center use on petitioner’s property would be allowable, even if respondent’s site were a suitable alternative, because respondent’s property would then be the only suitable alternative site and the implementing strategy refers to “sites” rather than “site.”

County based its conclusion that respondent’s property is not a suitable alternative site on the fact that it is zoned CBD and there are now no NC zones in the planning area. County explained in its “findings”:

“It was not and is not the Board’s interpretation that grocery-based convenience shopping facilities are generically inappropriate in the CBD District. Our interpretation of the Plan is a narrow one: CBD district sites will not be considered as alternative sites under CFP Policy 1, implementing strategy (g) when there are NO Neighborhood Commercial (NC) designated sites within the relevant planning area.
U* * * * *
“In order to insure that those neighborhood convenience needs are met, the Board concludes that where demographics warrant, each planning area must include an adequate number of NC designated sites to insure that the needs the NC designation is intended to satisy are met. Although these needs could be satisfied by CBD designated sites, prudent planning policy does not permit the Board to rely on CBD sites alone to appropriately satisfy convenience needs. CBD sites are located based upon criteria that vary from those used to locate NC sites. Due to the number of commercial uses allowed within the CBD District, there are no assurances that CBD sites will in fact be developed to satisfy identified neighborhood needs. In short, each planning area must include a sufficient number of NC sites, with appropriate locations and sizes. That is not the case in the Sunset West Community Planning Area.” (Emphasis in original.)

LUBA rejected that reasoning, because:

“The county’s position as stated in its findings is simply not reflected in the county’s plan. While the county’s findings regarding the desirability of requiring there be an NC site on each planning area make sense and reflect a reasonable and [82]*82prudent planning policy, this policy is not expressed in the plan or implementing ordinances. The county, therefore is neither obliged nor permitted to use it. If the county wishes to adopt such a policy as part of its plan, it must do so.”

We agree with LUBA. Implementing strategy (g) relates to redesignations which particular proponents seek, inter alia, in order to conduct particular uses at particular locations. The provision is not designed to serve as a planning mechanism whereby county can make general revisions to its zoning scheme or its zoning philosophy in response to site-specific applications for redesignations.

Given the purpose of the implementing strategy, we disagree with county’s and petitioner’s understanding that the term “appropriately designated,” which precedes the words “suitable alternative sites,” enables county to conclude that a site is not a suitable alternative location for a use because, for reasons unrelated to the application, the county prefers a zone which differs from that of the alternative site. In context, “appropriately designated” refers to zones in which the proposed use is permissible, not to zones which have additional attributes which county deems desirable for reasons unrelated to the use. County’s basis for concluding that respondent’s property is not a suitable alternative site has nothing to do with its suitability for the use and has nothing to do with strategy (g)(ii). The conclusion rests instead on county’s perception that an NC zone in the area is desirable from a planning standpoint. That may be so, but this is not the proceeding and strategy (g) (ii) is not the vehicle for the planning decision which county wishes to make. See West Hills & Island Neighbors v. Multnomah Co., 68 Or App 782, 787, 683 P2d 1032, rev den 298 Or 150 (1984).

County also concluded that a proponent can satisfy its burden of demonstrating a lack of alternative sites if it shows that there is only one suitable alternative, because the plural word “sites” in subsection (g)(ii) means that a proposed use is permissible at the proponent’s location unless there is more than one suitable alternative site for it. The county governing body reasoned:

“The alternative sites criterion obligates the Applicant to show:
[83]*83“ ‘A lack of appropriately designated suitable alternative sites within the vicinity of the proposed use.’
“The criterion reflects a policy that more than one site shall be available to accommodate any identified need. This policy is also reflected in C[F]P Policy 20 relating to the urban area economy and in Statewide Planning Goal 9 - Economy of the State, both of which obligate the County to strengthen the local economy through designation of ‘an adequate amount of commercial and industrial land to ensure choice in the marketplace.’ CFP Policy 20, Implementing Strategy 2(b).
“Even if the Board assumes that the CBD designated Standard Insurance site is appropriate to meet the grocery-based convenience shopping needs identified by the Applicant * * * without the Applicant’s site there is only one site within the Planning Area to meet an identified need. The plan requires choice in the market place, not monopoly.
“This Board is not in a position to dictate the only location within a community Planning Area where a specific use will be developed. To take such a position would violate Policy 20 implementing strategy (b), Goal 9 and Policy 1 implementing strategy (g).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

M & T Partners, Inc. v. Miller
460 P.3d 117 (Court of Appeals of Oregon, 2020)
Care Ambulance Co. v. Multnomah County
777 P.2d 997 (Court of Appeals of Oregon, 1989)
Standard Insurance v. Washington County
761 P.2d 1348 (Court of Appeals of Oregon, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
761 P.2d 534, 93 Or. App. 78, 1988 Ore. App. LEXIS 1519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/standard-insurance-v-washington-county-orctapp-1988.