Lennar Northwest, Inc. v. Clackamas County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Municipal Law
  • Date Filed: 05-03-2016
  • Case #: 2015-100
  • Judge(s)/Court Below: Opinion by Ryan
  • Full Text Opinion

When a hearings officer evaluates factors in considering a zone change application, the factors must be evaluated in accordance with the comprehensive plan of the location, and the hearings officer may not give dispositive weight to one factor when different weights are not delineated in the Clackamas County Zoning and Land Development Ordinance (ZDO).

Petitioner Lennar appeals a hearings officer’s decision denying Lennar’s proposed zone change. Lennar applied to rezone property from immediate urban low density residential (R-10) to immediate urban low density residential (R-8.5). The hearings officer denied the zone change application.

The criteria for zone changes are set out at Clackamas County Zoning and Land Development Ordinance (ZDO) 1202.03, which requires that county officials consider seven factors: (1) physical site conditions, (2) capacity of facilities, (3) availability of transit, (4) proximity to cultural activities, (5) location, (6) need for neighborhood preservation and variety, and (8) density average. Applying these factors, zone changes must be consistent with the ‘applicable goals and policies of the Clackamas County Comprehensive Plan (CCCP).’

Lennar argued that the hearings officer improperly construed factors 2, 3, 4, and 6. LUBA agreed that the factors were misapplied. The hearings officer incorrectly found that the goals supported giving less weight to factors 2 and 3, and more weight to factor 6. LUBA determined that nothing in the language of the policy or any of the factors indicates that some factors should be given greater weight than others.

LUBA also determined that the language of the appropriate policy requires the county to consider each factor independently. LUBA rejected Clackamas County’s argument that factor 6 was more important and reasoned that selective reliance is unsupported by the CCCP when the CCCP is read as a whole. On remand, LUBA required that the hearings officer consider each of the factors equally and determine the most appropriate zone for the land without unduly weighing the factors. Furthermore, LUBA held that the hearings officer’s findings were inadequate to explain why a change from R-10 to R-8.5 would be inconsistent with the “existing development plan.” REMANDED.