## Facts

- JT Smith, Inc. proposed developing high-density residential housing and a school athletic field on agricultural land south of the City of Adair Village.
- To allow the project, JT Smith applied to the City of Adair Village and Benton County for comprehensive plan amendments and zoning changes, including an expansion of the city’s urban growth boundary (UGB).
- The city and county approved ordinances that:
  - expanded the UGB by about 142 acres,
  - changed the comprehensive plan designation of the subject property from agricultural/exclusive farm use to high-density residential and open-space designations, and
  - rezoned the property from an exclusive farm use zone to urban residential and open-space zoning districts.
- In justifying the amount of land added, the city and county projected population growth and calculated residential land need using assumptions that included an average household size and an average residential lot size of about 6,000 square feet.
- The local governments relied in part on a comprehensive plan provision (Plan Policy 4) addressing lot sizes and a citywide average lot size of about 6,000 square feet.
- Jerry L. Hildenbrand and other residents/landowners appealed to the Land Use Board of Appeals (LUBA), arguing that:
  - the city and county expanded the UGB even though there was vacant or underdeveloped land within the existing UGB that could accommodate the desired urban uses, contrary to the comprehensive plan’s limits on expansion, and
  - the governments overstated the amount of additional land needed by using flawed growth and density assumptions (including the 6,000-square-foot lot-size assumption), resulting in an oversized expansion.
- LUBA agreed with petitioners on the treatment of vacant/underdeveloped land within the UGB and remanded the ordinances to the local governments for further proceedings on that issue.
- LUBA rejected other challenges, including key parts of petitioners’ quantity-of-land and boundary-location arguments tied to the governments’ lot-size/density assumptions.
- Petitioners sought judicial review in the Oregon Court of Appeals, focusing on LUBA’s rulings that upheld the governments’ land-need and boundary-location reasoning.

## Issues

1. Whether LUBA erred in upholding the city’s and county’s reliance on Plan Policy 4 to assume an average 6,000-square-foot residential lot size for the UGB expansion area when calculating the amount of additional residential land needed.
2. Whether, given the zoning designations applied to the expansion area and the meaning of the plan policy’s “citywide average” language, the local governments’ lot-size/density assumptions and related quantity-of-land findings were legally sufficient.

## Decision

- The Court of Appeals reversed and remanded LUBA’s decision in part.
- The court held that LUBA and the local governments misinterpreted Plan Policy 4 in a way that improperly supported using a 6,000-square-foot average lot-size assumption as a fixed input for the expansion-area land-need calculation.
- Because the lot-size/density assumption was a core component of the finding that a substantial amount of additional acreage (including the 118-acre residential-need figure within the overall expansion) was required, the court remanded for reconsideration of the quantity-of-land analysis and related findings consistent with the correct understanding of the plan policy.
- The court otherwise left undisturbed the portions of LUBA’s order not implicated by the plan-policy error (including LUBA’s remand to address the governments’ treatment of vacant or underdeveloped land inside the existing UGB).

## Legal Principles

- A local government’s interpretation of its comprehensive plan must be consistent with the text and function of the policy read in context; an interpretation that treats a citywide-average policy as a substitute for the density allowed by the applicable zoning is not permissible.
- When a comprehensive plan policy concerns achieving a citywide average through minimum-lot-size regulation, it does not automatically justify assuming that newly added UGB land will develop at that average for purposes of a Goal 14 land-need calculation.
- Quantity-of-land findings for a UGB expansion must rest on defensible density assumptions tied to applicable development standards; if the assumed lot size/density is not supported under the governing plan and zoning framework, the land-need determination must be reconsidered.
- On judicial review of LUBA, the Court of Appeals reviews legal errors, including erroneous plan interpretations, and will reverse and remand where such an error materially affects the land-need and UGB-expansion analysis.

## Conclusion

The Oregon Court of Appeals held that the city and county (and LUBA) relied on an incorrect reading of Plan Policy 4 to support a 6,000-square-foot average lot-size assumption in the UGB land-need calculation, and it therefore reversed and remanded in part for further proceedings using the correct interpretation and corresponding land-need findings.


Hildenbrand v. City of Adair Village, 217 Or. App. 623, 177 P.3d 40 (2008)