Harrison v. City of Cannon Beach

Pursuant to Cannon Beach Municipal Code (CBMC) 17.40.020(A)(1), “[p]lanned residential development . . . shall include not less than three acres of contiguous land, unless the planning commission finds that property of less than three acres is suitable by virtue of its unique character, topography or other natural features, or by virtue of its qualifying as an isolated problem area” and where a proposed planned development is shown to possess “unique topography” it may qualify for a “degree of flexibility” consistent with the purposes of the planned development provisions of CBMC 16.04.310.

The subject property is .57 acres (about 24,800 square feet) and is zoned Residential Medium Density (R-2), which imposes minimum lot sizes of 5,000 square feet. In November 2014, Jeff Nicholson, intervenor-respondent, applied for approval of a planned development, variance, and a zoning map amendment to add a Planned Development Overlay to the subject property in order to site four dwellings on the property. The planning commission hearing on January 22, 2015 recommended that the city council deny the applications. Following subsequent hearings, the city council voted to tentatively approve the applications, adopt findings of fact in support of the approvals, and thereafter petitioner Dale Hintz and others testified in opposition to the applications and appealed to LUBA.

In their first subassignment of error, petitioners argue that Cannon Beach Municipal Code (CBMC) 17.92.050 gives the city only the authority to consolidate the hearings, and that therefore the city council exceeded its jurisdiction in allowing the city council to make the final decision on Nicholson’s application for a variance. LUBA found that the issue raised in the first subassignment of error was not raised prior to the close of the initial evidentiary hearing on the applications and was therefore outside of LUBA’s scope of review. LUBA dismissed the second and third subassignments of error for failure to establish that the mistaken reference to the “Design Review Board” rises to the level of a “procedural error” within the scope of ORS 197.835(9)(a)(B). LUBA disagreed with petitioners’ second assignment of error, which argued that the proposed planned development was inconsistent with CBMC 17.40.010(C) and that certain comprehensive plan provisions and zoning code provisions had any bearing on the city council’s decision to apply the planned development provisions to intervenor’s proposal. The second assignment of error was denied. The city’s decision was AFFIRMED.