LUBA rules in favor of city on affordable housing project

The Oregon Land Use Board of Appeals denied an appeal of the Sweet Home City Council’s decision approving the Brookside Development.

Brookside Development is a proposed 23-unit planned unit development to be located on 3.42 low-density residential acres at the south end of Sunset Lane. Ten duplex units will be used for low-income seniors and disabled persons. The remaining units, single-family homes, will be sold to low- and moderate-income families.

Neighbors for Sensible Development, primarily including neighbors of the proposed development, appealed three actions by the City of Sweet Home in the development. The group first appealed the Planning Commission’s June 5 preliminary plan approval. The group appealed the City’s Council’s later decision on the planned unit development and the City Council’s decision approval of the related subdivision. Those decisions were final on Dec. 12.

Prior to the council’s approval, the planning commission approved the subdivision and recommended approval of the planned unit development proposal, which automatically goes to the council for a second hearing. The Neighbors for Sensible Development appealed the commission’s subdivision decision to the council.

The City of Sweet Home did participate in defending the decision before LUBA. Linn County Affordable Housing, the Brookside developer, intervened with LUBA on behalf of the council.

All three appeals were consolidated. LUBA heard oral arguments in April.

In the first appeal, LUBA reversed an initial ruling it made about the preliminary approval process after LCAH moved to dismiss it. LUBA had ruled initially that the approval was a final decision that could be appealed to LUBA.

LUBA reversed itself on the issue when LCAH argued that the preliminary approval process is not a final or binding decision. No work was allowed to proceed by receiving approval in concept for the project. It is only after the preliminary approval process that an application is filed. LCAH and later LUBA likened it to a pre-application meeting, which is usually held between a developer and staff.

With its reversal, the first three points, called “assignments of error,” raised by Neighbors for Sensible Development were denied. On those three points, the opponents of the Brookside Development contended that the city failed to provide notice and an opportunity to be heard, that the decision was not supported by written findings and that LCAH failed to submit necessary information, meaning the city lacked “evidentiary support.”

LUBA denied the Neighbors’ fourth point, which contended that the council’s decision, a zoning map change, that requires 45 days notice to the Department of Land Conservation and Development before the first hearing. The Neighbors argued that the city provided only seven days notice.

LUBA agreed with LCAH’s argument that the requirement does not apply to “small-tract zoning map amendments” and denied the Neighbors’ argument.

The Neighbors fifth point argued that because the city’s preliminary approval process was flawed, the record does not contain evidence that the general plan, created later in the process, was in conformance with the approved preliminary plan.

LUBA ruled that the Neighbors did not establish any error in the city’s preliminary approval process, much less one that affects the evidentiary support for the challenged council decision. LUBA denied the assignment of error.

In their sixth assignment of error, the Neighbors argued that the decision fails to address issues raised during the process. LUBA agreed with LCAH that the city’s findings in the case are not inadequate for any reason advanced by the Neighbors.

On the seventh point, the Neighbors contended that they were deprived of their rights under state and federal constitutions, the rights of due process and the right to petition government for redress of grievances when the city council allowed the applicant and its supporters to testify first in public hearings. The Neighbors argued that opponents could not testify until late at night, and that prevented some opponents from testifying.

Limitations on the opportunity for oral testimony do not constitute a procedural or constitutional errors where the local government provides opportunity to present written testimony, according to LUBA, which denied the error.

LUBA’s decision could be appealed to the Court of Appeals.