Younger v. City of Portland

739 P.2d 50, 86 Or. App. 211
CourtCourt of Appeals of Oregon
DecidedJune 24, 1987
DocketLUBA 86-046; CA A43194
StatusPublished
Cited by2 cases

This text of 739 P.2d 50 (Younger v. City of Portland) 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
Younger v. City of Portland, 739 P.2d 50, 86 Or. App. 211 (Or. Ct. App. 1987).

Opinion

DEITS, J.

Petitioners seek review of LUBA’s affirmance of the City of Portland’s decision to amend its comprehensive plan and to change the zoning classification of a 17.4-acre parcel in northeast Portland from heavy and general manufacturing to light manufacturing. The city’s actions were sought by respondents Fred Meyer Real Estate Properties (Fred Meyer) and the Hyster Company to enable Fred Meyer to develop a shopping center and to conduct certain other uses on the property. Petitioners advance two principal reasons for reversing the city’s and LUBA’s decisions: The city failed to give appropriate consideration to and make necessary findings concerning the potential impact of permitted uses in the new zone other than the specific uses contemplated by the Fred Meyer application; and LUBA wrongly construed and applied the statutory standard for reviewing the city’s findings.

Petitioners argue that, in acting on a proposal to rezone land, a planning jurisdiction must consider the potential impact of all uses which are permitted in the proposed zone rather than limit its concern to the specific use that the applicant for the change intends to conduct on the rezoned property. Petitioners maintain that neither Fred Meyer, nor future owners or users of the parcel, are limited to the shopping center and other uses which Fred Meyer now intends to make of the property, but are entitled to pursue any of the more than 100 uses which are permitted in the zone. LUBA agreed with petitioners that the city may not “simply focus on the impact of the Fred Meyer proposal and not the potential impact caused by the rezoning should Fred Meyer not complete its project and other uses move on to the property.”1 Nevertheless, LUBA concluded that the conditions which the city placed on the zone change, which it said were “tailored to the Fred Meyer store,” together with LUBA’s perception that “it is difficult to conceive of a more intensive use than a shopping center,” provided a sufficient basis for affirming the [214]*214rezoning decision, notwithstanding the city’s failure to consider other possible uses under the proposed zoning classification.

Petitioners disagree with LUBA’s conclusions. They contend that the city’s conditions are consistent with other uses as well as the shopping center and, more importantly, that LUBA simply hypothesized that other permitted uses could not be as intensive as the shopping center use, in the absence of any consideration or findings by the city to that effect. The city and the proponents argue that LUBA’s order should be affirmed both on the basis of LUBA’s reasons for sustaining the city’s decision and because LUBA was not correct in concluding that city consideration of uses other than Fred Meyer’s proposed use was required. We affirm LUBA’s order.

Comprehensive plan amendments must be made in conformance with the requirements of applicable statewide planning goals, statutes and local plans and ordinances. Anderson v. Peden, 284 Or 313, 587 P2d 59 (1978). Thus, it is necessary to look to these sources to determine if, as petitioners contend, the impacts of possible permitted uses must be considered in making this amendment and zone change. There is nothing in state law, the city’s plan or ordinances or general principles of land use law which supports petitioners’ contention.

In this case, the pertinent requirements for the requested plan and zone change are found in policies 10.4 and 10.8 in the city’s comprehensive plan. Policy 10.4 provides, in relevant part, that an applicant must show that the requested change is

“(1) consistent with and supportive of the appropriate comprehensive plan goals and policies,
“(2) compatible with the land use pattern established by the comprehensive plan,
“(3) in the public interest to grant the petition; the greater the departure from the comprehensive plan map designation, the greater the burden of the applicant, and
“(4) that the public interest is best served by granting the petition at this time and at the requested locations.”

[215]*215Policy 10.8 provides that the city council must make two findings to approve a zone change:

“1. The proposed rezoning must be to the maximum comprehensive plan map designation * * *.
“2. It must be found that services adequate to support the proposed industrial or commercial use or the maximum residential density allowed by the proposed rezoning are presently available or can be reasonably made available (consistent with the comprehensive plan public facilities policies) by certificate of occupancy or completion from the Bureau of Buildings.”

As LUBA concluded, Policy 10.8 does not require that all permitted uses in a zone be considered, but rather the policy only requires that the city find that necessary services will support the particular use proposed. However, LUBA concluded that Policy 10.4 requires that other permitted uses in the new zone be considered. LUBA reasoned that nothing in the policy suggests that “changes” refers to a specific project, but that it refers to the change in use designation.

The city generally interprets Policy 10.4 to mean that the “changes” to be considered will vary according to the nature of the specific change sought and the specificity and limitations on the proposed project. We agree with the city’s application of the policy in this case. Under circumstances where the proposed use is not among the more intensive ones in the zone or if there is little assurance that the proponent will carry out its intention to use the property in the proposed manner or for a comparably intensive use, LUBA’s conclusion that a rezoning decision must reflect consideration of more intensive permitted uses might well be correct. However, in this case, it would be an empty exercise to require the city to consider all alternative permitted uses.

The city’s decision was to downzone the parcel from heavy to light manufacturing, that is, to reduce the general level of intensity of the use to which the property can be put. Most of the uses which are permitted under the new classification were also permitted under the former zoning. There are compelling reasons to believe that, in the foreseeable future, the property will be put to the proposed use and to no other uses which are nominally permitted in the area under the new zoning classification. The conditions of approval limit the [216]*216intensity of use to one comparable with the particular Fred Meyer project.2 In addition, Fred Meyer must submit the project plan for review under the city’s design review process before obtaining a building permit as well as review under the city’s Superblock Development Ordinance, which requires review of the project as a single planned project.

Petitioners next contend that LUBA erred by affirming certain city findings, relating mainly to the compatibility of the proposed center with comprehensive plan policies aimed at preserving existing businesses and commercial areas. Petitioners argue that the city did not apply the proper standard in its review of whether there was sufficient evidence to support the findings.

ORS 197.835

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

Related

Younger v. City of Portland
752 P.2d 262 (Oregon Supreme Court, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
739 P.2d 50, 86 Or. App. 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/younger-v-city-of-portland-orctapp-1987.