Save Downtown Canby v. City of Canby

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 07-23-2014
  • Case #: 2013-114
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

City of Canby did not err in approving rezoning from Downtown Canby Overlay Core Commercial to Outer Highway Commercial for purposes of approving a permit to build a fuel station.

The city council of Canby approved in December 2012 text and map amendments to rezone a property on which Great Basin Engineering wished to build a fuel station. This rezoned the property from Core Commercial (CC) to Outer Highway Commercial (OHC), the former being intended for pedestrian-oriented development and the latter for automobile-oriented development. In June 2013, LUBA remanded the decision with the instruction to reconsider whether the rezone complied with the Transportation Planning Rule in OAR 550-012-0060 and whether the city was required to consider the impact on a future pedestrian crossing. The city re-approved on remand, and Save Downtown Canby (SDC) appealed. SDC first argued that the TPR analysis adopted by the city fails to account for the differences in frontage, setback, and footprint requirements, which would allow for more fuel pumps and higher traffic. LUBA found that the change in standards would actually decrease the maximum developable area, and thus the rezone would not increase the potential number of pumps or traffic. The Board held that the city’s findings regarding the crosswalk were adequate to satisfy remand, rejecting SDC’s argument to the contrary. SDC next argued that the city erred by approving the application under the OHC design standard rather than the CC standard. LUBA held that the “fixed goal-post rule” of ORS 227.175(2) did not apply here because the permit and zone change applications were effectively consolidated even if not considered simultaneously. Lastly, SDC argued that a trellis wall used to satisfy the frontage standard was not a “building” or “structure” and as a result the proposal failed to meet floor area ratio standards. The Board however deferred to the city’s interpretation of those terms and upheld its conclusion as to the adequacy of the floor area ratio. AFFIRMED.