After multiple extensions, the Land Use Board of Appeals (LUBA) has issued a final opinion on the John Englund Condo project. Plaintiffs Robert Strickland and Paul Van Der Velt filed the petition for review to appeal city approval of two variances and a conditional use application to develop two mixed-use residential and commercial buildings. William K. Kabeiseman argued on behalf of plaintiffs Sticklin and Van Der Velt (Shallon Winery) in the case with Steve C. Morasch arguing for the intervenor-respondent, John Englund. The City of Astoria chose not to appear.
The petitioners brought 4 possible errors to the attention of LUBA and asked them to overturn the City’s decision to approve the project. While LUBA did not overturn the project, they did remand it back to the City.
The first issue was a height variance from 28 to 45 feet. According to city code, in order to grant variances the applicant must prove an “unnecessary hardship,” and this was the main bone of contention that LUBA had with the application. Included in the findings of fact submitted to LUBA, the City wrote why they thought it was a ‘unnecessary hardship’ for the applicant:
The applicant has advised that cost for this construction over water will be approximately $150 per square foot for almost $8 million on less than two acres of development. * * * With the cost to build over water, it is not feasible to construct to only 28’ as the majority of the cost is in the piling and decking to support any structure. * * * To deny a height variance would reduce the economic feasibility of any construction on this site and therefore may eliminate any viable use by the applicant. While the amount of profit benefited from a project is not a factor for consideration, the ability to do a project at all is a factor. A 28’ high building probably could not be built that would be cost effective. Therefore, it would be an economic hardship to deny the height variance.”
LUBA responded by saying that the high cost of building over water is not a reason to grant a variance, and that, ‘The evidence indicates that the project could be built within the existing zoning regulations and without the variances, but that it would not be the applicant’s preferred design.’
Also included in documents from the City was an ‘unnecessary hardship’ for the City itself:
“The applicant is proposing to increase the height and eliminate the commercial uses. Development over the water is extremely costly. * * * To construct a building 28’ high the full width of the property would be allowed outright. This would be a hardship on the city as there would no longer be any access to the river. The construction of taller buildings with larger view corridors and public space reduces this hardship. Without the variance a development could occur that would block the citizens from any access to the waterfront.
LUBA responded, “While a development that would provide river views and access to the river could be considered a benefit to the city, the inability to obtain such a benefit hardly constitutes suffering or privation.” LUBA continued, “such an interpretation would make the potential bases for granting a variance almost limitless…..the city improperly justified the height variance based on its determination that inability to obtain river views would be an unnecessary hardship to the city.”
The second issue raised by the petitioners was a variance given that allowed Englund to have about 25% of the bottom floors ‘tourist-oriented’ property, instead of the 75% required by City code. A subsection of this challenge addressed the City allowing 25% of the ground floors to be ‘commercial use’ which has a much broader range than ‘tourist-oriented’. LUBA ruled against the plaintiff in the latter subsection because he did not raise the issue at the local level, but did rule against the City in the former because they failed to show an ‘unnecessary hardship’.
The third error brought forth by the petitioners states that the City did not address Astoria Development Code 12.030©, which states that “no variance may be granted ….which will increase the allowable residential density in any zone with the exception of individual lot size reduction.” LUBA agreed that the City did not address it, but that the Plaintiffs did not address it at a local level either.
The final error given to LUBA by the petitioners was the conditional use permit granted to John Englund that would have allowed him to build condos in a Aquatic 2 zone. From the decision: “… the proposed conditional use approved by the city approved a proposal that is dependent on approval of the variances. Because we have determined that the city erred in approving the variances, it follows that the city also erred in approving the conditional use permit.”
Earlier today NCO contacted LUBA for clarification.
Staff Attorney Fred Wilson stated that LUBA can do three things when they rule on a case. Reverse an approval, remand it back to the entity, or affirm the decision. “With a remand it basically means that, yeah, you made some mistakes, but you may be able to fix it,” said Wilson. When asked how this will proceed, Wilson responded, “the City is going to have to revise this application if they want to approve the project.” Wilson later said that with a remand, LUBA may or may not see this case again. And that if the City does make changes to the application, it will open it back up for another appeal from the petitioners or any other vested parties.
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