- Court: Oregon Land Use Board of Appeals
- Area(s) of Law: Land Use
- Date Filed: 10-05-2017
- Case #: 2017-058
- Judge(s)/Court Below: Opinion by Bassham
- Full Text Opinion
The city rezoned the subject property and issued a tentative PUD approval, which authorized development of five parcels in five phases. This approval was subject to Condition 3, which imposed a “trip cap” applicable to all five phases. Two years later, the application was modified to propose a different and more traffic-generative mix of development on parcel 4, to be developed as Phase 4. However, a different use code under the ITE manual was used for the estimation of traffic. The hearings official rejected the use of a different ITE manual code, but allowed the applicant, under an additional “third requirement,” to conduct a current traffic study to determine if the final phase would require a revised traffic impact analysis and additional improvements to comply with the Transportation Planning Rule. Four years later, intervenor conducted a current traffic study, which was approved because it demonstrated that the development of Phase 5, the final phase, was consistent with Condition 3 of the ITE manual.
Petitioner appeals the approval and argues that the hearings official misconstrued Condition 3 by allowing the third requirement to replace the first requirement. Specifically, petitioner argues the applicant must demonstrate that maximum development of all five phases does not exceed the trip cap, as determined under the ITE manual (the first requirement). Intervenor argues that once the first four phases are developed, and the applicant seeks approval for the final phase, it is the third requirement that governs how compliance with Condition 3 is evaluated, not the first requirement. LUBA agrees with petitioner and finds that the hearings official’s interpretation improperly construes Condition 3. Since the decision effectively eliminates a requirement of Condition 3, it is therefore not consistent with the text, context and apparent purpose of Condition 3. REMANDED.