City Can’t Reject Developer’s Application Because of Size

Facts: Dunes City, Ore., through its Land Use Board of Appeals (LUBA), rejected a developer's proposal to build single-family and government housing in the city. The developer asked a court to overrule the LUBA's decision, which was based on the city having fewer than 2,500 residents, and therefore allowing the agency to turn down the application without having “clear and objective” standards prescribed under Oregon law.

Ruling: The court sided with the developer and reversed the LUBA decision.

Reasoning: Under Oregon law, the LUBA should have determined whether the developer was applying to build needed housing, the court ruled. The exception in the Oregon law for cities under 2,500 didn't apply in this case, the court determined, because the developer's application was for needed housing under a comprehensive plan that the city was considering.

The court explained: If the Dunes City comprehensive plan expressly identifies single-family housing as needed (which it does), then the city has opted into the needed housing statutory requirement for clear and objective standards for single-family housing even though, by statute, it was excluded from the list that otherwise identifies single-family housing as needed housing.

Because the city made the express policy choice to identify single-family housing as needed housing in its comprehensive plan, the statutory requirements related to needed housing, such as the requirement for clear and objective standards, apply to single-family housing in Dunes City, the court reasoned. Therefore, the court concluded, the city was not exempted from the application of the “clear and objective” standards required by the law.

• Montgomery v. City of Dunes City, July 2010