Salem Adopts a Site Plan Review Ordinance
By Alan M. Sorem
Saalfeld Griggs PC
Effective January 1, 2009, the City of Salem will implement its first site plan review ordinance. This article discusses the purpose and effect of the site plan review ordinance and address some common questions.
WHAT IS THE PURPOSE OF SITE PLAN REVIEW?
The purpose of the site plan review is to ensure development projects comply with: “all requirements imposed by the Salem Revised Code, which include requirements related to access, pedestrian connectivity, setbacks, parking areas, external refuse storage areas, open areas, and landscaping; and requirements that transportation and utility infrastructure are adequate or will be adequate to serve the proposed development.”
In other words, the city will now review almost all developments to ensure that they comply with all ordinances that regulate the internal layout of a property and its relationship to the surrounding properties.
While site plan review is a new ordinance, the city has actually been engaging in this type of review without the benefit of an ordinance governing the procedure for years. In fact, this ordinance is a reaction to a legal dispute regarding whether the old informal review process complied with state law. In a case before the Land Use Board of Appeals (“LUBA”), the Board held that the city used discretion in its building permit review process, and therefore the old process was a land use decision. Delk v. City of Salem, 51 Or. LUBA 123 (2006). State law requires the city to give notice to all surrounding property owners of land use decisions, give them an opportunity to submit comment, and even appeal the decision to a hearing officer, the city council, and LUBA. In the Delk case, the city did not notify an adjoining property owner, and therefore LUBA remanded the city’s permit approval.
WILL SITE PLAN REVIEW APPLY TO MY DEVELOPMENT?
Site plan review will not apply to all developments. The site plan review ordinance specifically excludes the construction of residential dwellings and duplexes, sign installations, regular maintenance or repairs, and interior construction that does not involve a change of use. However, the site plan review ordinance will apply to tenant improvement projects that involve a change in “use.” Determining what exactly constitutes a change in use that triggers site plan review will be a question of fact to be determined on a case by case analysis. However, if one owns an office building, it is unlikely that a change from one office tenant to another will constitute a new use, but a change from commercial office to retail would constitute a new use that would trigger a site plan review. Additionally, a change in industrial tenants will often constitute a new use even if both uses are permitted under the zoning code.
IF SITE PLAN REVIEW APPLIES TO MY DEVELOPMENT, WHAT DOES THAT MEAN?
The Site Plan Review ordinance has two basic levels of applicability. “Type I” review involves no “land use decisions,” which means the city staff will not apply any “discretionary standards designed to regulate the physical characteristics of a use.” “Type II” review involves the application of “discretionary standards” or requires a traffic or geologic report, an adjustment of the amount of right-of-way dedicated to the city, or a variance or conditional use permit. Practically speaking, a Type I review will be very similar to the current building permit process. However, developments that require a Type II permit will be treated as traditional land use matters.
WHAT ARE THE NEW RISKS CAUSED BY SITE PLAN REVIEW?
Developments that require Type II review will be subject to the land use process, which means opponents will have the ability to participate, submit comments and appeal the city’s decision. Ultimately, Type II developments will have an added risk of protracted litigation and the associated transactional costs and attorney fees. Additionally, even if a project is deemed by the city as a Type I development, an opponent who later becomes aware of the proposed development could still appeal and challenge the determination that no “discretionary standards” were applied. Because the city staff must determine that the proposed development is consistent with all development standards, it may be difficult to prove that no discretionary standards were applied. Therefore, some developers may choose to voluntarily process their application as a Type II development in order to avoid potential future litigation.
City staff has stated they are committed to processing site plan review applications as efficiently as possible. However, time will tell if the city is able control the site plan review process or if site to plan review will be another tool for land use opponents. If you have any questions or concerns about site plan review, please feel free to contact any of our land use attorneys.