Buffalo-Bend Associates, LLC v. Clackamas County

Where an applicant not only argues generally that the local government can apply only clear and objective standards and conditions under ORS 197.307(4), but more specifically that certain terms in certain local code provisions that the local government applied are undefined and subjective, the local government’s failure to respond to those arguments requires remand.

Eastbank Development, LLC (Eastbank) appeals a limited land use decision by a county hearings officer approving design review for a 286-unit apartment complex. Before the county, Eastbank argued that, because the application was for needed housing, the county could apply only “clear and objective” standards and conditions under ORS 197.307(4). The hearings officer reasoned that the “issue was not raised until very late in the process. I do not see that the applicant may rely on such arguments at such a late juncture.” The hearings officer approved the application with conditions. Both Eastbank and and Buffalo-Bend Associates, LLC (Buffalo-Bend) appealed.

Petitioner's first assignment of error argues the hearings officer erred by refusing to analyze whether the applicable criteria for its decision are "clear and objective". ORS 197.307(4) requires local governments to apply only "clear and objective" development criteria to applications to develop needed housing. The county concedes that "the hearings officer's failure to apply the needed housing statute is error that requires remand." Buffalo-Bend argues that, because Eastbank did not identify to the county which specific standards were not clear and objective, it failed to raise the issue with “sufficient specificity” to preserve it for review under ORS 197.195(3)(c)(B). Because Eastbank raised this issue before both planning staff and the hearings officer, and because Eastbank not only argued generally that the county could apply only clear and objective standards, but more specifically that the term “safety” in ZDO 1007.01.E was undefined and subjective, LUBA agrees with Eastbank that it raised the issue with sufficient specificity to alert the hearings officer that ORS 197.307(4) applied. Petitioner's first assignment of error is sustained. The county's decision is REMANDED.