Claus v. City of Sherwood

A local government does not err in concluding ORS 92.040 applies to all local government laws rather than only those pertaining to the implementation of a comprehensive plan.

Petitioner appealed the City’s approval of a site plan modification for a storage facility as part of a planned unit development (PUD) in an area zoned light industrial (LI). The PUD had first been approved in 1995, and at the time the local code allowed for mini-warehouses and commercial storage in the LI zone. Although the City later removed mini-warehouses and commercial storage as a permitted use in the LI zone, a local code provision stated the rules governing the application were those that were in existence at the time of the application’s approval. Before that provision was repealed in 2012, the applicant applied, and was approved for, subdivision of the property for future commercial uses, which would include commercial storage and mini-warehouses.

In 2016, the applicant submitted a site plan for four storage buildings and a recreational vehicle storage area. The plan was approved, and the facilities were constructed. In 2022, the applicant applied for a major modification to demolish the existing facilities and construct a three-story self-storage facility instead. The City approved the application, concluding the applicant had the default 10-year vested rights for uses of the property under ORS 92.040, and thus the original local provision allowing commercial storage facilities was still valid for the application.

On appeal to LUBA, Petitioner assigned error to the City’s construction of ORS 92.040(2) and (3). Petitioner argued the City erred by 1) concluding the provisions of ORS 92.040 applied to all local government laws, rather than only those that implemented a comprehensive plan, 2) applying the default 10-year timeframe of ORS 92.040 instead of a shorter timeframe established by the City in previous actions, and 3) allowing the applicant to make changes to a site plan that was already implemented.

Under ORS 92.040, “(2) After September 9, 1995, when a local government makes a decision on a land use application for a subdivision inside an urban growth boundary, only those local government laws implemented under an acknowledged comprehensive plan that are in effect at the time of application shall govern subsequent construction on the property unless the applicant elects otherwise. (3) A local government may establish a time period during which decisions on land use applications under subsection (2) of this section apply. However, in no event shall the time period exceed 10 years, whether or not a time period is established by the local government."

LUBA denied Petitioner’s sole assignment of error. As to the first subassignment, LUBA found the plain text of ORS 92.040 and its legislative history supported the City’s interpretation that ORS 92.040 is not limited to provisions pertaining to a comprehensive plan and applies to all “local government laws.” LUBA also denied the second subassignment, finding the actions Petitioner cited did not constitute a decision by the City to set a shorter timeframe than 10-year default, but instead pertained to other project timelines. Finally, LUBA denied the third assignment of error because the local code allowed for modification of an approved site plan, and Petitioners had not shown why the applicant could not use that process to modify its plan now. LUBA concluded the City had not erred in its interpretation of ORS 92.040.

Affirmed.