A long spring and summer of controversial land-use decisions in Corvallis has now entered a fall and winter of appeals, one that seems likely to extend for a few more seasons. Or perhaps longer.
The city has four land-use cases currently under court review. One, a challenge to a 2016 state law that limits voter-approved annexations, is before the Oregon Court of Appeals.
The other three all are on their way to the state Land Use Board of Appeals. Residents have challenged:
• City Council approval of an Oregon State University development sector swap that could allow the university to build a 290-bedroom residence hall on 3.5 acres near the intersection of Ninth Street and Monroe Avenue; and
• City Council approval of the rezoning of property near the intersection of 63rd Street and Country Club Drive that could allow for perhaps 100 or more apartments and 100 or more parking spaces on the 6-acre parcel.
Meanwhile, developers have challenged City Council rejection of an annexation agreement that would have brought 16.45 acres of land south of West Hills Road into the city's stock of land and opened it up for possible residential development.
“I don't remember when the city has had three unrelated land-use decisions under appeal this close together,” said Corvallis City Attorney Jim Brewer, who has been providing legal guidance to the city for more than two decades.
“It's not unusual to have several in one year and it really isn't too unusual to have something at the Court of Appeals at the same time as appeals on other issues are at LUBA.”
How did we get here? The story includes peaks and valleys of drama that hinged on how many councilors were present and voting, which ones might have had a change of heart and the views on the city's housing situation of a mayor who only votes to break ties.
Annexation by vote
Oregon Governor Kate Brown signed legislation in March 2016 that limits the ability of local governments to send land annexations to the voters for approval.
Corvallis was the first city in the state to adopt voter-approved annexations, doing so in 1976. The city has used the tool more than 70 times since then, with the most prominent recent one a 2012 vote that brought in 33 acres of land near Western Boulevard and 35th Street that became the Retreat student housing complex.
Corvallis, with assistance from the city of Philomath and the League of Oregon Cities, challenged the law, with preserving local control of land-use issues the key driver. Brewer and his office volunteered to work for free on the case, which came with unanimous backing of the City Council.
Oral arguments in the case before a three-judge panel were held July 13, 2018 in Salem. After that hearing Brewer was asked when a decision might be announced. Brewer just laughed, noting that he has seen cases require two years to resolve.
“For the court of appeals to take more than a year after oral arguments to make a decision is unusual,” said Brewer in a Nov. 26 email exchange. “We have no idea when we might see a decision; we end up checking online each week.”
As a point of reference Brewer noted that residents grew impatient in 1999 and 2000 when a challenge to the city's ban on smoking in bars and restaurants lingered before the Court of Appeals for 13 months.
In fairness, Brewer also noted that the annexations matter does not have any legally mandated timelines as do land-use and criminal matters.
We are at 16 months and counting on the Corvallis annexations challenge.
Meanwhile, a second and significantly larger annexations agreement is being worked on between the city and developers hoping to build housing on a 118-acre parcel northeast of the 53rd Street roundabout and within a quarter-mile of the Caldwell Farms property.
Paul Bilotta, community development director for the city, said that “city and county staff are working on establishing the phasing of infrastructure upgrades to West Hills Road. This process may continue into January. I think the earliest a draft agreement might be available would be late February or early March. but that is a bit of a guess.”
OSU sector swap
The university, which is divided for planning purposes into nine sectors, applied to move 95,000 square feet of development space from Sector B in the center of campus to Sector D at the east end of campus at the intersection of Monroe and Ninth. If the sector swap is approved OSU plans to build a 290-resident dorm for upper division and graduate students that would consist of a three-story building facing Ninth and a four-story, L-shaped structure at the corner of 11th and Madison.
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Backers of the proposal cited the need for on-campus student housing. Opponents wanted to preserve the open space at that end of the campus while also citing parking and traffic issues.
City approval was required to make the change, but it was a wild ride to get there.
To wit: On Aug. 5 the council voted 4-3 to reject the OSU proposal, with Jan Napack (Ward 1), Charles Maughan (Ward 2), Barbara Bull (Ward 4) and Charlyn Ellis (Ward 5) voting "no." Hyatt Lytle (Ward 3), Nancy Wyse (Ward 6) and Andrew Struthers (Ward 9) voted to approve the plan. Ed Junkins of Ward 8 was absent and Bill Glassmire’s resignation for health reasons from the Ward 7 seat was announced that night.
Two weeks later on Aug. 19 during what is usually a routine vote on “formal findings” in the case Junkins was on hand to cast a fourth “yes” vote, with Mayor Biff Traber casting the fifth yes vote.
On Sept. 16 new formal findings, this time noting council approval of the plan, passed 5-4 with Traber again breaking the tie. But that vote had to be affirmed by a second reading because it was not unanimous. So on Oct. 6 the same 5-4 margin merged, with Traber again breaking the tie while noting the need for the housing and the appropriateness of the location.
On Oct. 18 the city received a notice of appeal to LUBA. The appeal notice started the clock on a series of 21-day deadlines for the case record to be gathered and the two sides to file briefs and rebuttals. Ultimately, the process will lead to oral arguments before the three-member board in Salem. Such a session likely is months away.
The petitioners brief cited 10 assignments of error in the council action, including a lack of public notice, using land development code language based on an expired campus master plan, the incompatibility of the project with the neighborhood, the way the formal findings were prepared, concerns about the rent that would be charged, failure to comply with OSU’s parking standards, failure to consider another site, reliance on a study on student housing, not considering the existing supply of campus land and wetland disclosure issues.
Developers are seeking to change the zoning for the 6-plus acres at 53rd and County Club from medium density (RS-6) to high density (RS-20), which would allow for 20 or more units per acre. That zone usually means apartments, duplexes and townhouses, but it is not limited to those housing types.
Backers of the plan noted that the city was under orders from the state to increase its supply of multifamily housing. Key concerns of those opposing the application were traffic, environmental impacts, the compatibility of high-density housing on property which is adjoined on the south and west by agricultural land and whether the city truly needs more RS-20 land.
What followed at the City Council level was a whiplash of back-and-forth votes similar to that of the OSU sector swap. But with a bit of a twist. Here is how it went:
On June 17 the City Council voted 4-3 to deny the request. Napack, Junkins, Bull and Ellis voted to deny the application, while Glassmire, Maughan and Struthers voted to grant it. Lytle, who did not attend the June 3 public hearing on the matter, chose not to vote after saying she had not read the meeting materials.
On July 15 the council considered formal findings but chose to overrule them, also on a 4-3 vote. Here’s how it happened: Wyse was not present June 17, but she led the charge for approval on July 15, citing the need to act on the city’s housing supply challenge. Lytle again chose not to participate. Complicating matters was that Junkins, who voted for denial on June 17 and Ward 7’s Bill Glassmire, who voted to approve at the first reading, were not present at the formal findings session.
The result was a 3-3 tie, with Maughan and Struthers voting with Wyse to overturn the earlier decision. Napack, Bull and Ellis again voted to reject the plan. Traber agreed with Wyse, noting “we do have a housing shortage. Clearly there is a need. And this seems an appropriate place to do this.”
So city staff prepared new formal findings approving the plan for the Aug. 5 session. Again, the council voted 4-3 to approve. But it was a different 4-3. At the second reading Junkins, who had voted with those rejecting the Carson plan June 17, switched sides and voted to approve, noting that in the intervening two months further deliberations on the city’s housing issues had convinced him to back the Carson plan. Traber’s vote was not needed.
Because the formal findings vote was not unanimous a second reading was required and the same 4-3 vote resulted on Aug. 19.
On Sept. 11 notice of intent to appeal was filed. According to City Attorney Brewer the two sides have not agreed on the record, or case file, in the matter, thus no briefs have yet been filed.
The Caldwell Farms property consists of 16.45 acres west of the 53rd Street roundabout. Developers hope to annex the plot to the city’s stock of land and build housing on it.
Opponents cited the possible use of the legal — but controversial tool — of eminent domain and concerns about safety issues because the property would have just one entrance and exit route. However, any eminent domain action would require council approval and city code already covers requirements for entrances and exits.
The annexation agreement process was a new one for Corvallis, which used to handle annexations with a public vote, as noted above.
Neighborhood opponents also cited traffic concerns on West Hills Road and wetlands issues, while also criticizing the council for moving forward on the annexation before a new area plan for the region is completed.
Two identical 5-3 votes to reject the annexation agreement were taken by the council, one on Sept. 16 and the other, the formal findings decision, on Oct. 7. Voting to reject the annexation agreement were Ellis, Bull, Napack, Junkins and Lytle. Wyse, Maughan and Struthers voted yes.
On Oct. 28 backers of the Caldwell Farms proposal filed notice of intent to appeal. As with the OSU and Carson appeals, agreeing on the record and filing of briefs and counters to briefs, must take place before oral arguments take place at some future date.