HomeMy WebLinkAboutOrdinance 1835ORDINANCE. NO.
AN ORDINANCE AMENDING CPMC 17.44.020 AND 17.44.030 TO
BETTER DEFINE COMMUNITY SHOPPING CEN'T'ERS AND TO
CLARIFY DEVBLOPMENT PLAN PROCESSING KEQUIREMENTS
RECITALS:
1. The City of Central Point ("City") is authorized under Oregon Revised Statute (ORS)
Chapter 197 to prepare, adopt and revise comprehensive plans and implementing ordinances
consistent with the Statewide Land Use Planning Goals.
2. The City has coordinated its planning efforts with the State in accordance with ORS
197.610(2) and OAR 660-018-0020 to assure compliance with goals and noticing requirements.
3. Pursuant to authority granted by the City charter, the Oregon Revised Statutes, and the
Oregon Administrative Rules, the City has determined that there are extenuating circumstances
requiring an expedited review.
4. Pursuant to the requirements set forth in CPMC Chapter 1.24 and Chapter 17.96, the
City has conducted the following duly advertised public hearing to consider the proposed
amendments: ~~'
(a) City Council hearing on June 12th, 2003. (~
2-~
Now, therefore;
THE PEOPLE OF THE CITY OF CENTRAL POINT, ORF,GON, DO ORDAIN AS
FOLLO`YVS:
Section 1. Section 17.44.020 of the Central Point Municipal Code is hereby amended to
read as follows:
17.44.020 Permitted uses. The following uses are permitted in the C-4
district:
A. Professional and financial, including:
I. Banks and similar financial institutions,
2. Accounting and bookkeeping offices,
3. Real estate offices,
4. h~surance company offices,
5. Legal services,
6. Architecture and engineering offices,
7. Professional photo or art studios,
8. Counseling services,
9. Corporate or govenunental offices;
1 - Ordinance No. j~
(061203)
B. Tourist and entertainment-related facilities, including:
1. Convenience market; meat, poultry, (ish and seafood sales, 6ui1 and
beverage stands,
2. Drugstore,
3. Automobile service station; automobile and recreational vehicle parts
sales and repairs; and truck rentals,
4. Motel and hotel,
5. Walk-in movie theater,
6. Bowling alley,
7. Photo and art galleries,
8. Photo processing pickup station,
9. Travel agency,
10. Barber and beauty shops,
11. Sit-down restaurant or dinner house (including alcohol),
12. Cocktail lounges and clubs serving alcoholic beverages,
13. Tavern with beer only,
14. Commercial parking lot,
15. Community shopping centers, defined as a group of commercial establish-
ments planned, developed, owned or managed as a unit, with no individual unit having
more than 80,000 square feet of floor space, which may include any of the permitted uses
in this section and may also include the following uses:
a. _ Supermarket,
b. Department store,
c. Sporting goods,
d. Books and stationery,
e. Gifts, notions and variety,
f. Florist,
g. Leather goods and luggage,
h. Pet sales and related supplies,
i. Photographic supplies,
j. Health food,
k. Self=service laundry,
1. Antique shop,
m. Delicatessen,
n. Pastry and confectionery,
o. General apparel,
p. Shoes and boots,
q. Specialty apparel,
r. Jewelry,
s. Clocks and watches, sales and service,
t. Bakery, retail only,
u. Bicycle shop,
v. Audio, video, electronics sales and service,
w. Printing, lithography and publishing,
16. Mobile food vendors,
17. State-regulated package liquor stores,
2 - Ordinance No. ~~ (061203)
18. Other uses not specified in this or any other district, if the planning
Commission finds them to be similar to the uses listed above and compatible with other
permitted uses and with the intent of the C-4 district as provided iir Section 17.60.140.
Section 2. Section ] 7.44.030 of the Central Point Municipal Code is hereby amended to
read as follows:
17.44.30 Conditional uses.
A. The following uses are permitted in the C-4 district when authorized in
accordance wi th Chapter 17.76:
1. Campgrounds and recreational vehicle overnight facilities;
2. Drive-in movie theater;
3. Golf course/driving range;
4. Ice and roller skating rinks;
5. Dance halls;
6. Billiard/pool halls;
7. Miniature golf courses;
8. Amusement center (pinball, games, etc.);
9. Non-industrial business/vocational schools;
10. Physical fitness/conditioning center; martial arts schools;
11. Carwash;
12. Taxicab dispatch office;
13. Ambulance/emergency services;
14. Day care center;
15. Drive-in fast food outlets;
16. Other specialty food outlets, mobile food vendors;
17. Television and radio broadcasting studio;
18. Retail auto parts sales;
19. Accessory buildings and uses customarily appurtenant to a permitted use,
such as incidental storage facilities, may be permitted as conditional uses when not included
within the primacy building or structure;
20. Permitted uses that are referred to the planning commission by city staff
because they were found to exhibit potentially adverse or hazardous characteristics not
normally found in uses of a similar type and size.
B. Uses other than those listed above maybe pernitted in a C-4 district when
included as a component of a commercial, tourist, oroffice-professional planned unit
development that consists predominantly of uses permitted in the zone, which has no
individual unit having more than 80,000 square feet of floor space, and is planned and
developed in accordance with Chapter 17.68. These uses shall include the following:
1. Department store;
2. Sporting goods;
3. Books and stationery;
4. Gifts, notions and variety;
5. Florist;
6. Leather goods and luggage;
3 - Ordinance No. ~~S (061203)
7. Pet sales and related supplies;
8. Photographic supplies;
9. Health food;
10. Self-service laundry;
11. Antique shop;
12. Delicatessen;
13. Pastry and confectionery;
14. General apparel;
15. Shoes and boots;
16. Specialty apparel;
17. Jewelry;
18. Clocks and watches, sales and service;
19. Bakery, retail only;
20. Bicycle shop;
21. Audio, video, electronics sales and service;
Printing, lithograplry and publishing.
Passed by the Council and signed by me in authentication of its passage this
~. (.~~` day of < un. , 2003.
Mayor Hank Williams
ATTEST:
City Representative
b~
Approved by me this ~__ day of_s V 2003.
Mayor Hank Williams
4 - Ordinance No. ~ ~ ~ (061203)
01/25/04 12:37 FAa
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FACSIMILE TRANSMTSSIOIV
DATE: 7anuary 23, 2004
lQ7 0 O 1
OTN ER~~O'FFIC ES.
~d ePUle..~a:h'i ngtPn
~uu>h~ingi,n mJ'dc ,
Os~B Cnw'.'caN
TO: FggNO- PHONE NO.
Tomllumphrey
City of Central Point 1-541-664-6384 1-541-664-3321 x230
FROM: )hAX NO. PHONE NO•
William 1~. Kabeiseman 503 226-0259 503 228-3939 x3231
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Final Opinion and Order
MESSAGE:
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O1/L3/04 1Y:37 FAF
1 BEFORE THE LAND USE BOARD OF APPEALS
X002
2 ' ~ " ' "~ -~ a' OF THE STATE OF OREGON
3
4 NAC7M~S PROPERTIES, LLC, SOUTH SALEM L.L.C.
5 and WAL-MART STORES, INC_,
6 ` Petitioners, J~l'~2~.'49 P1.1 2:2~ 1-U~~
7
8 vs.
9
10 CITX OF CENTRAL POINT,
11 "Respondent.
12
13 LUBA No. 2003-107
14 __
15 FINAL OPINION
16 AND ORDER
17
18 Appeal from City of Central Point.
19
20 E. Michael Connors, Portland, and Alan b. B. Harper, Medford, filed the petition for
21 review. E. Michael Connors aggued on behalf of petitioners. With therxt on the brief was
22 Crtegory S. Hathaway, Davis Wright Tzetuaiue, LLP and Iiornecker, Cowling, Hansen and
23 ~, Fleysell, LLP.
2a
25 William K. I{abeiseman, Portland, filed the response brief and argued on behalf of
26 respondent. With him on the brief was Edward J. Sullivan and Garvey, Schubert Bazer, PC.
27
28 BASSHAM, Boazd Chair; BRIGGS, Boazd Member, HOLSTUN, Board Member,
29 participated in the decision.
30
31 REMANDED 01/21/2004
32
33 ~ You are entitled to judicial review of this Order. Judicial review is governed by the
34 provisions of ORS 197.850.
Page 1
01/23/04 12:38 FA%
1 Opinion by Bassham.
2 NATL7121 OT`THE DECISION
3 Petitioners appeal a city decision amending the city's zoning code.
4 FACTS
I~j003
5 Naumes Properties, LLC (Naumes) owns a 21.6-acre parcel in the City of Central
6 Point. The property is zoned C-4, Tourist and Offtce Professional. Naumes has been
7 attempting to develop the property with a large format retail business (big-box business) for
8 some time. Most recently, Naumes has been working with Wal-Mazt Stores, Inc. (Wal-Mart)
9 to build a Wal-Mart Superstore on the property. In response to the city's belief that an ""
10 application for the Wal-Mart Superstore was imminent, the city instructed its staff to prepare
11 au emergency ordinance to amend the zoning code to limit community shopping centers in
12 the C-4 zone to a maximum of 80,000 square feet. At some unspecified time, the city sent
13 notice of the proposed zoning code amendment to all owners of C-4 properyy in the city.
14 That notice states only that the city planned to hold a public hearing on June.12, 2003, to
15 consider the adoption of an ordinance to clarify and amend the Language regarding permitted
16 and conditional uses in the C-4 zone. Prior to the June 12, 2003 hearing, Wal-Mart
17 submitted an application to develop the proposed superstore on the Naumes property.
18 The city conducted the initial public hearing on June 12, 2003. The city explained
19 that, although the city planning commission would usually review the proposed amendment
20 fast, that the matter had bean expedited to the city council due to the expected Wal-Matt
2I application. The city then noted that because Wal-Mart had akeady submitted an application
22 that the emergency no longer existed The hearing was continued to June 26, 2003, at which
23 .the proposed amendment was approved without the emergency clause. This appeal followed"
~ A Wal-Mart Superstore is larger and contains more amcnitecs than standard Wal-Mart stores. The
proposed superstore in this appeal is approximately 207,000 square feet.
Page 2
01/23/04 12:38 FAX
X004
i STANDIPIG
2 The city~iaes' nbt cTfiallenge the standing of petitioner Naumes, but the city does
3 challenge the standing ofpctitioners Wal-Mart and South Salem 1,LC (South Salem) alleging
4 that they did not appear below. Wal-Mart responds that its representative, Chuck Martinez,
5 appeared at two public hearings in this matter and also met with city representatives in his
6 capacity as Wal-Mart's representative. South Salem responds that its representative, John.
7 Batzer, submitted written testimony in his capacity as South Salem's representative.
8 When ChuclC Martinez testified before the city council he stated that he represented
9 several companies, including Wal-Mart. Record 18. This testimony was sufficient to
10 constitute an appearance on behalf of Wal-Mark Wa1-Mart has standing to participate in tlris
11 appeal.
12 The written testimony provided by John 13atzer, however, does not mention that he
13 represents South Salem in any capacity or that he is submitting the testimony on South
14 Salem's behalf. Record 38. Itt fact, Batzer's testimony does not mention South Salem at all.
15 Absent any other evidence, and none has been brought to our attention, a reasonable person
16 would have no way of knowing ffom Batzer's letter that it was submitted on behalf of South
17 Salem. South Salem has not established standing to participate in this appeal. Therefore
18 Soutlt Salem is dismissed from this appeal.
19 1VIOTIOI~t TO FILE REPLY BRIEF
20 Petitioners move for permission to file a reply brief and to exceed the normal fxve-
21 page limit for reply briefs pursuant to OAR 661-010-0039? The reply brief responds to five
s OAR 661-OIO-0039 provides:
"A reply brief may not be filed unless percussion is obtained from the Board. A requert to file
a reply brief shall be filed with the proposed reply brief together with four copies as soon as
possible after respondent's brief is filed A reply brief shall be confined solely to new matters
raised in the respondent's brief. A reply brief shall not exceed five pages, exclusive of
appendages, unless percrssion for a longer replybrief is given by the $oard. #'.!"
Page 3
O1/2a/04 12:18 FA%
boos
1 alleged new matters in the response brief and explains that due to the many issues and their
2 Complexity, a repl~nef hl excess of the five-page lnnit is warranted. The city objects to the
3 reply brief regarding one of the alleged new matters and moves to strike that portion of the
4 reply brief.
5 The disputed part of petitioners' reply brief concerns petitioners' discussion of
6 whether alleged procedural errors by the city prejudiced petitioners' substantial rights.
7 Generally, a reply brief is warranted to allow a petitioner to respond to an assertion in a
8 response brief that a petitioner's substantial rights were not prejudiced by a procedural error.
9 Shaffer v. City of Happy Palley, 44 Or LUBA 536, 538 (2003). The city, however, asserts
10 that a diffezent result is mandated in the present appeal because petitioners argued in the
11 petition for review that their substantial rights were prejudiced. 'flrezefore, according to the
12 city, that issue cannot be a new matter raised for the first time in the response brief.
13 The city relies on Casey Bones Well Drilling, Inc. v. City of Sowell, 34 Or LUBA 263
14 (1998), for the proposition that because petitioners raised the issue of prejudice to their
15 substantial rights in the petition for review they are precluded from responding to that as a
16 new matter raised in the response brief. In Casey Tones, we did not allow the petitioner to
17 file a reply brief after the response brief Challenged the petitioner's standing and our
18 jurisdiction, because the petitioner devoted over 20 pages of the petition for review to
19 azguments anticipating those challenges. The petition for review in the present appeal alleges
20 a number of procedural errors and azgues that those errors prejudiced petitioners' substantial
21 rights. The response brief faults petitioners for failing to demonstrate that each individual
22 procedural error prejudiced petitioners' substantial rights. The proposed reply brief responds
23 to that assertion, and argues that it is appropriate to analyze the cumulative impact of the
24 alleged procedural errors, Unlike the reply brief in Casey Tones, the zeply brief proposed
25 here does not simply elaborate on arguments izr the petition for review that anticipate
26 defenses in the response brief. The city's motion to strike is denied
page 4
01/23/04 12:38 FA% ~J000
1 No party objects to the length of the reply brief. For tkte foregoing reasons, the reply
2 brief is allowed. ~"'"' "-"' ""
3 SECONll ASS~GIVMENT OF ERROR.
4 Zoning code amendments are subject to Central Point Municipal Code (CPMC) 1.24.3
5 CPMC 1.24.060 and 1.24.070 provide that all mattezs, including amendments to the
6 comprehensive plan and CPMC, are subject to ORS 197.763 regarding notice and the
7 conduct of hearings.4 These requirements apply to both quasi judicial and legislative
$ amendments.s
9 There does not seem to be any dispute that the city did not comply with CPMC 1.24
ZO or ORS 197.763. The city did not comply with the notice requirements in several ways. The
11 city failed to notify property ownezs within 100 feet of C-4 zoned properties. ORS
CPMC 17.88.030 provides:
"Applications and review [of zoning code amendments] shall conform to the provisions of
Chapter 1.24 of this codc and applicablo laws of the state. * * *"
` CPMC 1.24.060 and 1.24.070 provide as pertinent:
"124.060 Notice requirements. Notice for all public hearings shall cotnpty with O1tS
197.763{Z) and (3).
"1.24.070 Conduct of public heariogs * : *
"A. * * * the * * * city council shall hold a public hearing on the application, acting as a
quasi judicial body and subject to all the procedttral requirements in connection
thcrcwith_ : *
.~***x:
"G. All public hearings uadex this chapter shall ako confomt with the provisions of ORS
197.763, and to the extcat that any provision of this section shall be in conflict with
said statute, the statutory provisions shall prevail"
5 C1~MC 124.020(D) provides;
"The city councrl shall hold a public hearing and decide the following matters:
~[; t * i Y
" 2. Amcndramnts to the text and map o£tlre zoning ordinance[.] * * *"
Page 5
01/23/04 12:39 FAX
([10 0 7
1 197.763(2)(a)(A)_ The notice did not list the applicable criteria or the applicable chapter of
2 the CPIv>'O: O1F~'19~763~3)(b). It is not cleaz that the notice was provided in a timely
3 manner as the notice is not dated.6 The city also did not comply with the conduct of hearing
4 requirements. The city failed to identify the approval criteria. ORS 197.763(S)(a). The city
5 did not notify participants that failure to raise issues below may prevent those issues fxom
6 being raised before LUBA. ORS 197.763(5)(c). The city also failed to explain the right to
7 request a continuance and allow the record to retrain open for seven days. 0125 197.763(6).
8 The real dispute under this assignment of error is whether petitioners' substantial
9 rights were prejudiced. Procedural errors will not serve as a basis for reversal or remand
10 unless a petitioner's substantial rights are prejudiced. OI2S 197.835(9)(a)(B). The
ll substantial tights referenced in ORS 197.835(9)(a)(B) include an adequate opportunity to
12 prepare and submit one's Case and the right to a full and fair hearing. Muller v. Polk County,
13 16 Or LC1BA 771, 775 (1988). The city argues that petitioners' substantial rights were not
14 prejudiced. We do not agree.
15 In our view, the most serious of the several procedural errors committed by the city is
I6 the complete failure to Mention the applicable criteria for an amendment to the CPMC ~
17 Neither the notice, noz khe staff xepozt, nor the city's public discussion, nor the decision ever
18 mentions the applicable criteria. Tt is not until the zesponse brief was filed that any
19 representative of the city mentions the applicable criteria. In Latta v. City of Joseph, 36 Or
c As petitioners note, given that the staff memorandum to the city council asIang direction on how to
proceed regarding the ordinance is dated May 22, 2003, 21 days prior to the Ttmc 12, 2003 public heating, it is
unltkely the city complied with the 20-day mailing requirement of ORS 197.763.
~ CPMC 17.$$.010 provides:
"This title may be amended by changing the boundaries of districts or by changing any other
provision thereof, whenever the public necessity and convenience and the general welfare
require such amendment, by following the procedure of this chapter."
Page 6
01/23/04 12:99 FAR 1gj008
1 L1TBA 708 (1999), we faced a less serious example of procedural errors involving the failure
' 2 of a city to identifptherelev$rlt approval criteria. We stated:
3 "We believe petitioners' right to a fair opportunity to present their case was
4 substantially prejudiced by the city's failure to identify the relevant approval
5 criteria. This is particularly the case in view of the confusion over what was
6 being requested and how the city viewed the proposal. * * * The city's failure
7 to identify the relevant approval criteria added to the confusion during the
8 local hearing and interfered with the ability of both the supporters and
9 opponents of the application to present their cases." Id. at 712.
10 lJnlike Latta, where the approval criteria were at least referenced in the staff report and
11 addressed in the decision, the city in the present appeal never identified the approval criteria
12 at all.
13 The city attempts to demonstrate that, contrary to the express language of the CPMC,
14 CPMC 1.24 and ORS 197.763 do not apply to the present appeal. According to the city,
15 because the challenged decision is a legislative decision, those ordinances and statutes do not
16 apply. Given that the decision itself states that the decision was made "pursuant to the
17 requirements set forth in CPMC Chapter 1.24," the city's counsel appears to take a different
18 position than that taken by the city in its decision. Furthermore, CPMC 17.88.030 expressly
19 provides that decisions regarding zoning code amendments "shall conform to the provisions
20 of Chapter 1.24 of this code." Seen 3. CPMC 1.24.010 also states that the purpose of the
ZI city's code is to establish a uniform procedure for legislative and quasi judicial decisions,
22 including "amendments to the text and map of the Comprehensive Plan, annexations, [and]
23 amendments to the text and map o£ the zoning ordinance."g We reject the srtggestion in the
e CPMC 1.24.010 provides:
"It shall be the purpose of this chapter to establish a uniform procedure for planning, zoning
and land use decisions, including "` * a amendments to the text and map of the zoninoa
ordinance * ~ *."
Page 7
O1/2a/04 lZ:a9 FAY ~J009
1 response brief that the requirements of CPMC Chapter 1.24 and ORS 197.763 do not apply to
2 legislative decisio~l"~ a~~ell~s quasi judicial decisions e
3 The second assignment of ettor is sustained-
4 7'fJIRD ASSTCNMENT Or ERROR
5 As discussed earlier in this opinion, the quasi judicial procedures of CPMC Chapter
6 1.24 apply to coning code amendments. CPMC 1.24.070(C) requires the city to prepare
7 findings of fact that identify, among other things, the applicable criteria.t0 Petitioners argue
8 that the city's findings are inadequate because they fail to adequately explain the basis for the
9 city's approval of the zoning code amendment.it The city responds that ftndings are not
' A local government is entitled to adopt local land use standards that are more stringent than the minimum
state standards. Kenagy v. Benton County, 112 Or App 17, 20 n 2, 826 P2d 1047 (1992).
t0 CPMC 1.24.070(C) provides:
"The planning commission or city council shall make tfnttings of fact in connection with their
decision on the applications, with said findings to include fire applicable criteria and standuds,
the facts they find to be supported by substantial evidence, and conclusions describing how the
facts either support or prevent allowance of the application, based upon the applicable
s~udards and critezia Such findings may be read into the record as part of a motion made at
the time of the meeting, in support of the action taken, or the plann~na commission or councll
may direct that such findings be prcpazed in written Form by the applicant or staff to be
presented at the next regularly scheduled meeting. Such findings shall be in written form and
shall be attached as an exlu'bit to any resolution or ordinance passed relating to the
application."
u The city's findings are as follows:
"1. The City of Central Point (`City') is authorized under Oregon Revised Statute (ORS)
Chapter 197 to prcpaze, adopt and revise comprchensivc plans and implementing
ordinances consistent with the Statewide Land Use Planning Croak.
"2 The Ciry has coordinated its planning efforts with the State in accordance with ORS
197.610(2) and OAR 660-O18-0020 to assure compliance with goals and noticing
rzquirements_
"3. Pursuant to the authority grunted by the City charter, the Oregon Revised Statutes,
and the Oregon Adroinistrativo Rules, the City has determined that there are
extenuating cncumstances requiriug an expedited review.
"4. Pursuant to the requiremenu set forth in CPMC Chapter 1.24 and Chapter 17.96, the
City has conducted the following duly advertised public hearing to consider the
proposed amendments:
Page 8
O1/2a/04 12: d9 FAX f~j010
1 regaired.beeause this is a Legislative decision rather thazl a quasi judicial decision.12 Finally,
2 the city argues that even if°findings are required and the requirement for findings was not
waived by the city under CPMC 1.24.070(D)(6), the decision should be affirmed under 0175
4 197.835(I1)(b) because there is evidence that "clearly supports" the decision.13
"(a) City Cormcil hearing on Sure 12'", 2003.
"Now, therefore;
"THE PEOPLE OF THE CITY OF CENTRAL PO1NT, OREGON, DO ORDAIN AS
FOLLOWS:
"Section 1. Section 17.44.020 of the Central Point Muuucipal Code is hereby amended to rcad
as follows:
"] 7.44.020 The following uses are permitted in the C-4 district:
~<•4!3*
"15. Conununity shopping centers, defined as a group of commercial establishments
planned, developed, owned or managed as a unit, with no individual unit having
more than 80, 000 sguarefeet ofJloor space, which may include any of the permitted
uses in this section * * *"
"Section 2. Section 17.44.030 of the Central Point Municipal Code is hereby amended [o read
as follows:
"17.44.30 Conditional Uses
~.s***F
"B. Uses other than those listed above may be pemritted in a C-4 district when included
as a component of a commercial, tourist, or office-professional platmed unit
development that consists predocninanTly of uses pemritted in that zone, which has no
individual mil having more than 80,000 square feet of floor space, and is planned
and developed in accordance witix Chapter 17.66_ * * *" (Bmphasized language is the
amendment to the CPMC).
'Z The.city also argues that cven if findings are required that the city used its discretion to waive that
requirement under CPMC 1.24.070(D)(6) which allows the presiding officer to "[w]aive, in his discretion, the
application of any Wile in this ehspter where the r;rr,~.n~tances of the hearing indicated that it would be
expedicnY and proper to do so * * *". First of all, we agree with petitioners that the city did not implicitly waive
the requirement for findings. Even if the city does havc such discretion, which is questionable, it ecrtainly did
not exercise that discretion in the present case.
t3 ORS 197.835(li)(b) provides:
Page 9
Ol/2~/04 12:40 FAX Ci1j011
1 CPMC 1.24.070(C) provides that the city council "shall make findings of fact in
2 connection-with t~eii3ecislon on the application" that include the applicable criteria, the
3 facts relied upon, and a conclusion describing how the facts relied upon support the decision.
4 Seen 10. According to petitioners, CPMC 124.070(C) clearly requires findings for both
5 legislative and quasi judicial decisions. According to the response brief, findings are only
6 required for decisions involving "applications," and because legislative decisions such as the
7 challenged decision do not involve applications, there is no requirement for findings_ We
8 need not decide this issue because even if findings are not required by the CPMC, the city has
9 not demonstrated that the applicable criteria aze Satisfied.
10 The city is correct that there is no statutory requirement that all legislative decisions
11 be supported by findings. Redland/Yiola/Fischer"s Mill CPO v. Clackamas County, 27 Or
12 LCI)3A 560, 563-64 (1994) (and cases cited therein}.14 A respondent maybe able to supply
13 azgument and citation to Ure record in its brief that are adequate to demonstrate compliance
14 with the applicable approval criteria. Id, at 564. llowever, if we cannot perform our review
15 function, a legislative decision that is not supported by adequate findings must be remanded.
16 Citizens Against Irresponsible Growth v. Metro, 179 Or App 12, 16 n 6, 38 Pad 956 (2002).
17 The city attempts in its brief to demonstrate through legal azgnunent that the decision
18 satisfies the applicable criteria. The city also argues that the decision should be affirmed
I9 because the record "clearly supports" the decision.ts As petitioners point out, the city's
"Whenever tho findings are defective because of failure to recite adequate facts or legal
conchuions of fat7ure to adequately identify the standazds or their relation to the facts, but the
parties identify relevant evidence in the record which clearly supports the decision or a part of
the decision, the board shall a7drtm the decision or the part of the decision supported by the
record and remand the remainder to the focal government, with direction indicating
appropriate remedial action."
14 Where there is a local code provision requiting that Endings be adopted in support of legislative decision,
as is arguably the case here, the adoption of inadequate findings can provide a basis for remand. Andrews v.
City ofBrooldngs, 27 Or. LUDA 39, 43 (1994).
t5 The burden imposed upon a local govemment to demonstrate that a legislative decision satisfies the
applicable approval criteria under the second opfion discussed in Redland/Viota/Fischer's Mi1I CPO is not as
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1 attempt to defend its decision is created almost entirely out of whole cloth. While our
2 decision in ItedldT~/~lal~Xrcher's Mill CPO alludes to legal argument as well as citations
3 to evidence in the record, that allusion pertains to legal argument based on evidence in the
4 record.
5 "* * * we explained that even where the challenged plan amendment is
6 legislative, Goal 2 imposes an obligation that a local government explain why
7 the amendment complies with applicable statewide planning goals. This
8 explanation may be provided either in findings, or if not in Endings,
9 somewhere in the record supporting the Legislative plan amendment. Wheze
10 the local government does not adopt findings explaining why the challenged
11 legislative plan amendment complies with applicable goal requirements, we
12 rely on respondents to provide argument and citations to the record to assist
13 this Board in resolving allegations by petitioners that the challenged decision
14 does not comply with the applicable statewide planning goals." Vor¢ Luhken v.
15 Flood 12iver County, 22 Or LtJBA. 307, 314 (1991) (emphasis added).tfi
16 Irt the present appeal, the city's legal arguments aze almost entirely divorced from the
17 record. The city's only citations to the record are to anti-Wal-lvfart testimony from citizens.
18 Respondents' Brief 13, 16. As petitioners point out, there is nothing in the record that bears
19 on whether the "public necessity and convenience and the general welfare" require the
20 proposed amendments for purposes of CPMC 17.88.010. In short, there is nothing in either
2I the decision or the record that would allow the city to conclude that the applicable approval
22 criteria are satisfied, or that would allow us to review that conclusion, even assuming an
23 implicit conclusion to that effect was made. Had the city adopted a decision that
24 incozporated the legal arguments crafted in the response brief and developed a record
25 providing an adequate factual base for such a decision, perhaps our disposition would be
daunting as that required by ORS 197.835(11)(b)_ We will affirm a decision with inadequate findings pursuant
to ORS 197.835(II)(b) only when the evidence in the record renders a finding of compliance with the
applicable approval standards "obvious" or `inevitable" Tema v_ GFty of Newport, 36 Or LUBA 582, 589-90
(1999). Therefore, if a legislative decision with inadequate findings cannot be affirmed" by the process
applicable solely to legislative findings, it certainly cannot be afGitned pursuant to 0125 197.835(11)(b).
is Although Yon Lubken involved a legislative plan amendment and compliance with the statewide planning
goals, A'e see no reason that analysis should not apply equally to IegisIative zoning code amendments and to
other applicable approval criteria. In stun, even if quasi judicial findings are not t~quired, we must have
something from the decision or record to base otir decision upon.
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1 different. However, the city did not do that, and it cannot create an affirmable legislative
2 decision out of thin air t'n ttie response brief.
3 The third assignment o£ error is sustained.
4 I:Oi7RTH ASSIGNMENT OF ERROR
5 Petitioners argue that the city did not demonstrate that CPMC 17.88.010 was
6 satis£ted.t' Petitioners also argue that their constitutional right to equal protection was
7 violated. )3eeause we have already cotlcluded that the city's decision must be remanded so
8 that the city can adopt adequate findings, it would be premature to consider whether the city
9 has demonstrated "the public necessity and convenience and the general welfare" require the
10 CPMC to be amended. Similazly, it is premature to consider petitioners' constitutional
I1 challenge.
12 We do not reach the fourth assignment of erroz.
13 FLRST AS51GNME1sIT OF ERROR
14 Petitioners argue that the city erred in bypassing the planning commission and
15 proceeding directly to the city council for a decision on the amendment. CPMC 1.24.020(C)
16 provides that "the planning commission shall review and snake recommendations to the city
17 council on those matters specified in subsection b of this section * * *" CPMC
18 1.24.020(D)(2) includes "[a]mendments to the text and map of the zoning ordinance." The
19 city responds that while that is the normat procedure, nothing in the CPMC prevents the city
20 council, the final decision maker for such amendments, from proceeding without a
21 recommendation from the planning commission. As the city points out, CPMC 1.24.020(D)
22 ' makes clear that the city council must hold a public hearing and make the final decision
23 regarding amendments to the CPMC. Seen 5. According to the city, there is nothing in the
24 CPMC that makes city council adoption of a zoning ordinance amendment contingent upon
~' CPMC requurs the city to fled thst "the public necessity and convenience and the general welfare require
such amendment " Seen 7.
r
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I receipt of a recommendation from the planning commission or even that the city council
2 consider such a r~btYr3>ieniPa~ion.
3 While the interpretation articulated in the response brief may be plausible, that
4 interpretation was not made expressly or implicitly in the challenged decision below. Thus,
5 we do not have a reviewable interpretation. We also decline to interpret the provision in the
6 #irst instance. Because remand is required in any event, the city should interpret its ordinance
7 in the first instance on remand to detervxine whether planning commission review is a
8 necessary prerequisite to amending the zoning ordinance. Davis v. City of Ashland, 37 Or
9 LC7BA 224, 235 (1999)_
10 The city's decision is remanded.
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Ce>"tificate of Mailing
1 hereby certify that I served the foregoing Final Opinion and Order for LUBA No. 2003-107
on January 212 20047 l~mailing,t~ said parties or their attorney a true copy thcreol contained
in a sealed envelope with postage prepaid addressed to said parties or their attorney as
follows:
Alan D_B. Harper
1lornecker Cowling Hassen & FIeysell LLP
717 Murphy Road
Medford, OR 97504
Gregory S. Hathaway
Davis Wright Tremaine LLP
1300 SVSr Stb Avenue Suite 2300
Portland, OR 97201
William K. ICabeiseman
Garvey Schubert & Barer PC
121 SW Morrison Suite 1100
Portland. OR 97204
Dated this 21st day of January, 2004.
Ily Bur~ss
aralega`t
Kristi Seyfried
Administrative Specialist
X1015