Kine v. City of Bend

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 10-11-2016
  • Case #: 2016-032
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

On remand, LUBA must apply a deferential standard of review to a governing body’s interpretation of its comprehensive plan policies. ORS 197.829(1).

     The City of Bend filed an application to re-designate the subject property from Public Facilities (PF) to Residential Medium Density (RM), and to rezone the property from Residential Standard Density (RS) to the corresponding medium-density residential zone. The city council approved the application and the petitioner appealed to LUBA. LUBA remanded due to lack of adequate findings, and determining that the decision was not supported by substantial evidence. On remand, the city held evidentiary hearings, adopted findings, and approved the application. The petitioner appealed.

     The petitioner first argued that the city failed to adopt adequate findings supported by substantial evidence that explained how medium density development would promote Policy 5 of the Bend General Plan, which is to reduce trips and vehicle miles traveled, and facilitate non-automobile travel.  LUBA determined that since the city’s understanding of Policy 5 was not challenged, the city council adopted adequate findings. LUBA further stated that it must apply a deferential standard of review to a governing body’s interpretation of its comprehensive plan policies under ORS 197.829(1). 

     In its second assignment of error, the petitioner argued that the city “implicitly concluded that the 27th Street/Empire Avenue extension must be in place in order to provide the site with adequate transportation infrastructure, but that there is no basis in the record to conclude that the extension will be constructed concurrently with site development. “ LUBA determined that the city council “expressly chose not to” rely on the extension to find that the site currently has adequate transportation, and this was therefore not a basis for reversal or remand. Petitioner also argued that the city’s finding were inconsistent. LUBA concluded that the petitioner had not shown inconsistency, and further, even if inconsistency existed, the petitioner did not show why that would make the findings inadequate. AFFIRMED