Tokarski et al v. City of Salem

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 08-01-2016
  • Case #: 2016-025
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

The standards contained in Salem Revised Code (SRC) 210.035 apply only when evaluating applications for planned urban development (PUD) modifications; simple lot replats and subdivisions are reviewed under SRC 205.010.

Petitioner appeals a planning commission decision approving his application to subdivide a lot (Lot 473), as a modification of a planned unit development (PUD). Lot 473 is located within Phase 11 of the Creekside PUD (Creekside PUD). The history and amendments of the phase development of Creekside PUD are extensive. In 2003, PUD03-1 called for eventual completion by connecting the phases via an extension of Lone Oak Road.

In 2015, the petitioner applied for a PUD modification and a tentative subdivision plat approval to divide Lot 473. The application was approved, subject to conditions. Condition 3 required construction of Lone Oak Road prior to approval. The petitioner appealed. On appeal to LUBA, he alleged three assignments of error in regard to Condition 3.

In his first assignment of error, the petitioner contended that the city should not have approved the application as a modification to PUD03-1, which is what allowed the city to impose Condition 3. The petitioner argued that instead, the city should have evaluated the application as a simple four-lot replat or subdivision, under Salem Revised Code (SRC) 205.010, not SRC 210.035.

LUBA determined the city’s findings failed to explain why the subdivision was viewed as a “proposed modification.” The application did not propose to modify PUD03-1, making SRC 210.035’s modification standards inapplicable. LUBA found that nothing in SRC 210.015 suggests that a PUD modification is necessary in order “to replat or subdivide a lot created and recorded as part of an already approved and final PUD.” LUBA concluded that the city erred by requiring the petitioner to obtain approval to modify PUD03-1, and therefore, there was no basis to impose Condition 3. Due to its decision on the petitioner’s first assignment of error, LUBA did not evaluate the second or third assignments. REMANDED.