Kine v. City of Bend

Under OAR 661-010-0039, a reply brief must be filed within seven days of the date a response brief is filed; however, if a filing deadline occurs on a state or federal legal holiday, OAR 661-010-0075(8) permits a reply brief to be filed on the "next working day."

The subject property is a vacant 5.36-acre parcel that had been zoned Residential Standard Density (RS) and designated Public Facilities (PF) on the city’s comprehensive plan that the city subsequently re-designated from PF to Residential Medium Density (RM) and rezoned from RS to the corresponding medium-density residential zone (also called RM). Larry Kine then appealed the city ordinance that approved comprehensive plan and zoning map amendments to allow medium-density residential development to LUBA.

Kine’s first assignment of error challenged the adequacy and evidentiary support for the findings adopted to address five comprehensive plan policies. Although Kine’s general compliance challenge did not cite or discuss specific comprehensive plan policies, it did address the proximity of the RM designation/zone to commercial areas and employment in addition to other relevant considerations under several Bend General Plan policies. LUBA sustained Kine’s first assignment of error, having agreed with Kine that the city’s findings inadequately describe the “character” of the “existing area” and that further explanation was necessary to support the placing of medium density residential development in the middle of a primarily low density residential development area with respect to the “character of the existing area.” Kine’s second assignment of error argued that the city failed to comply with Bend Development Code (BDC) 4.6.300.B.3 because the city erred in relying on a potential future arterial street extension to support a finding that the property would be provided with adequate transportation networks. Despite the city’s argument that any development of the subject property would require a demonstration that public facilities have “adequate capacity,” LUBA sustained Kine’s second assignment of error, having determined that BDC 4.6.300.B requires that adequate public facilities are “planned to be provided concurrently with the development of the property” and that the city made no such finding. REMANDED.