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October 13, 2025 1644 Liberty Street SE Salem, Oregon 97302 Main (503) 581-1542 Fax (503) 585-3978 [EMAIL REDACTED] MathenyLawFirm.com City of Woodburn – Community Development Department 270 Montgomery Street Woodburn, OR 97071 (503) 982-5246 [EMAIL REDACTED] WRITTEN STATEMENT Variance Application (Woodburn Development Ordinance 5.03.12) Farmdale Apartments 1233 W Lincoln St, Woodburn, OR 97071 (Marion County Tax Lot No. 051W07CB09300) Applicant: Marion County Housing Authority Attorney For Applicant: Nicholas A. Rhoten, Matheny Law LLC VARIANCE REQUEST The Marion County Housing Authority (“MCHA”) submits this application for a Variance pursuant to the Woodburn Development Ordinance Section 5.03.12. The MCHA owns the above referenced property known as the Farmdale Apartments. The MCHA received land use approval from the Planning Commission to develop the Farmdale Apartments in Woodburn land use File Nos. DR 25-02, PAR 24-03, VAR 25-03, with the final decision dated June 26, 2025 (“Final Decision”). The MCHA is now seeking modifications to those approvals, and has, or will be, submitting a formal Modification of Conditions (“MOC”) application simultaneously with this Variance. Even so, the MCHA is submitting this Variance alongside the MOC to request removal1 of certain conditions of approval contained with the Final Decision. 1 City of Woodburn Planning Staff advised the MCHA of its position that a request to completely remove the conditions at issue would require a Variance application in addition to the MOC. Therefore, both applications are being submitted. The relief is being requested pursuant to both the Variance and the MOC, however, out of an abundance of caution to the extent the MOC could grant such relief. ---PAGE BREAK--- October 13, 2025 Page 2 Specifically, the MCHA requests the City of Woodburn remove the Conditions of Approval relating to the “Mid-block bicycle/pedestrian corridor” shown as Item 7 and Item 8.c under the Conditions of Approval relating to Design Review DR 25-02 in the Final Decision, excerpted and shown in red below: ---PAGE BREAK--- October 13, 2025 Page 3 SUMMARY OF LEGAL AUTHORITY Oregon land use law gives the City of Woodburn broad authority to allow for variance relief. See, e.g., Sokol v. City of Lake Oswego, LUBA No. 88-087, slip opinion at 10 (1989) (“to date, no Oregon appellate court decision has limited, on constitutional, statutory or other grounds, the scope of discretion which may be exercised by local government in establishing standards for the approval of variances.”). To that end, the City of Woodburn is not bound by historical interpretations of the criteria or past practices. Neil v. Columbia County, LUBA No. 2016-043, slip opinion at 17 (2016) (citing deBardelaben v. Tillamook County, 142 Or App 319, 325-26 (1996)). The City of Woodburn may examine a variety of factors in evaluating the variance criteria, including but not limited to financial burdens and the loss of developable property. Id (court stating “disproportionate financial costs” are appropriate factor for variance relief); see also Frewing v. City of Tigard, LUBA No. 2003-194, slip opinion at 41 (2004) (“significant additional expense with the potential loss of lots” deemed a valid “hardship” for the purposes of adjustment criteria). Lastly, the City may choose to not apply standards or requirements when imposing the standards may result in a regulatory “taking” or exaction prohibited2 by Dolan v. City of Tigard, 512 US 374 (1994) and the legal doctrine which has followed. Columbia Riverkeeper v. Clatsop County, LUBA No. 2008-067, slip opinion at 8 (2009) (“Where Dolan operates, it can function as a kind of variance, providing a basis under which the local government may choose not to exact property as a condition of development approval that it would otherwise be entitled to exact under its land use regulations”). We respectfully assert this as another basis to decline imposing the conditions at issue. 2 In Dolan v. City of Tigard, 512 US 374 (1994), the United States Supreme Court held the City of Tigard had not met its burden to show it was constitutionally permitted to require a bicycle path and greenway as conditions of approval related to a hardware store expansion. In subsequent cases the Supreme Court has held it is the government’s burden to establish the relevant “nexus” and “rough proportionality” required to make such conditions of approval constitutional. See, e.g., Sheetz v. County of El Dorado, 601 U. S. slip opinion at 5-6 (2024) (“Our decisions address [the] potential abuse of the permitting process. There, we set out a two-part test modeled on the unconstitutional conditions doctrine . . . First, permit conditions must have an ‘essential nexus’ to the government’s land-use interest . . . Second, permit conditions must have ‘rough proportionality’ to the development’s impact on the land-use interest . . . A permit condition that requires a landowner to give up more than is necessary to mitigate harms resulting from new development has the same potential for abuse as a condition that is unrelated to that purpose”); see also Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013). ---PAGE BREAK--- October 13, 2025 Page 4 CRITERA (Woodburn Development Ordinance 5.03.12) 5.03.12 Variance B. Criteria: A variance may be granted to allow a deviation from development standard of this ordinance where the following criteria are met: 1. Strict adherence to the standards of this ordinance is not possible or imposes an excessive burden on the property owner, and Applicant’s Response: At the outset, it is not clear whether strict adherence to the standards of this ordinance is possible. Specifically, the Final Decision states the Mid-block bicycle/pedestrian corridor path is required by WDO to 3.01.05B. & 3.01.07E., and 3.02.01E. First, the subject property is located to the eastern side of the block, near Leasure Street. WDO 3.01.05(C)(3) requires putting the bicycle/pedestrian corridor “through and near the middle of the block.” This location is mandatory; the corridor “shall” be “near the middle of the block.” Here, the block is over 2,200 feet. See Exhibit A. Putting the bicycle/pedestrian corridor “through and near the middle” would require locating the corridor on an entirely different property (near Cozy Way or North Court). Stated plainly: the bike/pedestrian corridor cannot be sited on the MCHA’s property given its location. Any corridors on the block must be placed on other property which is “through and near” the “middle of the block.” The MCHA has no control over its location on the block and this makes strict adherence impossible. Second, the other relevant standards should not be applied to this application under Oregon land use law because they are not “clear and objective” within the meaning of ORS 197A.400. Specifically, ORS 197A.400 mandates that the “standards, conditions and procedures regulating the development of housing” be “clear and objective.” If standards are not “clear and objective,” they cannot be applied to the development of housing. The Oregon Land Use Board of Appeals (LUBA) and Oregon Court of Appeals has said land use regulations are not “objective” if they “involve[s] subjective, value-laden analyses” and not “clear” unless “easily understood and without obscurity or ambiguity.” Roberts v. City of Cannon Beach, 316 Or. App. 305, 311-312 (2021); see also Rudell v. City of Bandon, 249 Or App 309, 318 (2012) (land use regulation is “clear” if it is “clear enough for an applicant to know what he must show during the application process.”). The question is whether there is “certainty of application.” While not always challenged, land use regulations frequently fail to meet this mandate. See Rogue Valley Assoc. of Realtors v. City of Ashland, LUBA No. 97-260, slip opinion at 18 (1998), aff'd, 158 Or App 1, rev den, 328 Or 594 (1999) (“Dictionary definitions of ‘clear’ and ‘objective’ suggest that the kinds of standards frequently found in land use regulations lack the certainty of application required to qualify as ‘clear’ or ‘objective.’”). ---PAGE BREAK--- October 13, 2025 Page 5 Here, the relevant regulations utilize discretionary language making their application unclear, subjective, and uncertain. See, e.g., WDO 3.01.07(E) (section sets forth "Off-Street Public Bicycle/Pedestrian Corridors” standards and says for "Improvement, amenity, and support facility standards” the standard is "Per the Director”); WDO 3.01.05(C)(4) (stating bicycle/pedestrian corridors “may” be required as part of a partition); WDO 3.02.01(E) (“the Director may require” certain types of easements as a condition of approval”). Oregon courts have held similar language was insufficient to pass muster. See, e.g., Homebuilders Association of Lane County v. City of Eugne, LUBA No. 2001-059/63, slip opinion at 37 (2002) (finding criterion stating the “planning director or public works director ‘may’ require” certain street designs impermissible). Therefore, we contend the standards imposing the Mid-block bicycle/pedestrian corridor on this housing development conflict with ORS 197A.400 and cannot be applied here. The conditions of approval should be removed to comply with ORS 197A.400 and Oregon land use law. Further – as an additional independent basis for meeting the criterion – strict adherence to the requirement for a Mid-block bicycle/pedestrian corridor would pose an “excessive burden” to the Marion County Housing Authority. To start, the requirement threatens the feasibility of the entire project. As an affordable housing development, the project requires certain types of investment and financing. The financing can be selective; it is extremely competitive to obtain the resources necessary from outside sources. Information over recent months has made clear the Mid-block bicycle/pedestrian corridor is an issue making the project uncompetitive in comparison to other projects. This creates significant financial burdens and was a driving factor in why the MCHA has made this variance request. In addition, moving the Mid-block bicycle/pedestrian corridor to other proposed portions of the property would pose an excessive burden in of itself, as the corridor would take up critical space restricting the ability of the MCHA to develop the affordable housing to its fullest and best potential to meet the housing needs of the local area. Lastly, it is unclear when, if ever, the neighboring properties will be redeveloped to allow for connectivity with the corridor. At present the corridor would have no connections. Thus, the Mid-block bicycle/pedestrian corridor would excessively burden the MCHA while being a “road to nowhere.” Possibly forever. This criterion is met. 2. Variance to the standards will not unreasonably impact existing or potential uses or Development on the subject property or adjacent properties. Applicant’s Response: granting the variance would not unreasonably impact existing or potential uses or Development on the subject property or adjacent properties. Indeed, removing the Mid-block bicycle/pedestrian corridor would enhance and maximize the use of land within the subject property for affordable housing by allowing for the MCHA to maximize its space and remain competitive for the resources necessary. Further, granting the variance would not harm ---PAGE BREAK--- October 13, 2025 Page 6 existing or potential uses on adjacent properties. There is currently no corresponding stub or corridor located on adjacent properties, and granting the variance in this instance would allow adjacent properties to have more flexibility in development and use overall. This criterion is met. CONCLUSION As set forth above, the Variance request conforms with the Woodburn Development Ordinance and all applicable criteria. Thus, the Variance should be approved. Thank you. Sincerely, Nicholas A. Rhoten ---PAGE BREAK--- EXHIBIT A