507 P.3d 804
Or. Ct. App.2022Background
- Oregon City adopted a Stormwater Master Plan (SMP) and updated stormwater and grading Design Standards to satisfy its DEQ NPDES MS4 permit obligations; the SMP amends the comprehensive plan and replaces a 1988 drainage plan.
- The SMP inventories conveyance needs, proposes capital improvements and BMPs, and relies on the Design Standards to regulate new development and redevelopment stormwater treatment.
- Much of the city was developed before modern stormwater controls; the Willamette and other receiving waters already exceed some state toxics standards and several bacterial TMDLs apply.
- Petitioners: (1) NEDC challenged that the SMP and Design Standards violate Statewide Planning Goal 6 (water quality/toxics); (2) Spady challenged that the SMP violates Goal 2 (Part I and Part III) for lacking inventories, alternatives, and policy statements; (3) Nicita argued the Design Standards (and earlier provisions) improperly take a Goal 2 exception to Goal 6 by using size thresholds that exclude smaller projects.
- LUBA affirmed the ordinances; the Court of Appeals reviewed for whether LUBA’s order was unlawful in substance and affirmed LUBA on all assignments of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SMP/Design Standards violate Goal 6 (NEDC) | SMP/design standards fail to address existing toxics exceedances and would allow future discharges that threaten state toxics standards | SMP and standards implement MS4 permit BMPs and do not authorize new development that would trigger Goal 6; Goal 6 works with DEQ requirements | Goal 6 not implicated; SMP/design standards regulate stormwater but do not authorize development that triggers Goal 6 review; MS4/BMP compliance is adequate for Goal 6 review here |
| Whether SMP violated Goal 2 Part I — inventories and alternate actions (Spady) | SMP lacks a Goal 6 water-quality inventory and does not evaluate alternative courses or policy choices to meet Goal 6 | Goal 2’s inventory/alternatives requirements are tied to what the applicable goal requires; Goal 6 does not mandate a water-quality inventory or alternative-means findings here | Goal 2 Part I not violated; plan need only include inventories and analyses required by the applicable goal and an adequate factual base, which SMP satisfied |
| Whether SMP violated Goal 2 Part III — use of guidelines / plan content (Spady) | SMP must include full text of Goal 6 or detailed description of alternative means/DEQ standards; prior comprehensive plan omitted Goal 6 text | Goal 2 Part III requires stating how guidelines or alternatives achieve goals, not restating goal text; SMP explains how MS4/design standards implement Goal 6 | Goal 2 Part III not violated; SMP adequately states how it uses guidelines/alternative means to achieve Goal 6 |
| Whether Design Standards (and other provisions) improperly take a Goal 2 exception to Goal 6 (Nicita) | Thresholds exempt small developments from Goal 6 compliance, effectively taking an unapproved exception | City did not take a Goal 2 exception; it concluded the standards comply with Goal 6; earlier plan/code challenges were beyond this appeal | No unlawful exception: city did not follow an exception process and did not purport to take a Goal 2 exception; Nicita’s other challenges are outside scope or unpreserved |
Key Cases Cited
- Mountain West Investment Corp. v. City of Silverton, 175 Or. App. 556 (2001) (LUBA order is unlawful in substance if it misinterprets applicable law)
- Central Oregon Landwatch v. Deschutes County, 301 Or. App. 701 (2020) (plan amendment review: a statewide goal is implicated only if the amendment directly or indirectly affects that goal)
- Opus Dev. Corp. v. City of Eugene, 141 Or. App. 249 (1996) (plan amendments reviewable for goal compliance only when they affect the goal)
- Urquhart v. Lane Council of Gov’ts, 80 Or. App. 176 (1986) (same principle on scope of goal review for plan amendments)
- 1000 Friends of Oregon v. LCDC, 244 Or. App. 239 (2011) (an adequate factual base for plan decisions is synonymous with substantial evidence)