April 01, 2009

City of Lebanon acting in administrative capacity when it denied PUD; determined to be acting arbitrary and capricious


Developer sought approval for a planned unit development. The city planning commission approved the development, but the city council did not approve it due to water runoff issues. Developer appealed. The trial court reversed the city council’s denial of the application, finding that the action was properly brought as a common law certiorari action and that the record contained no material evidence to support the city’s decision. The city appealed. We affirm.

Opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/costenterprises_040109.pdf

”The City further maintains that no section of the City’s PUD ordinance states that the council must grant an application for a PUD so long as a list of conditions is met. In McCallen, however, the court stated that where a “zoning ordinance provides relief from zoning requirements designed for more conventional development only when a planned development meets the standards of the pre-existing ordinance,” the criteria “are sufficient to require administrative adherence.” Id.

“It is our opinion that the Lebanon City Council was acting in an administrative capacity when it denied Cost’s application for a PUD. Consequently, the challenge to that action by writ of certiorari is proper. Under the writ of certiorari, review of the action of the Lebanon City Council is limited to whether it exceeded its jurisdiction or acted illegally, arbitrarily or fraudulently.” Id.

“The trial court noted that the Regan Smith study “states that the Chestnut Ridge PUD will reduce the drainage rate of water into the surrounding area. Specifically, the report states that ponds included in the Chestnut Ridge PUD design ‘will reduce runoff to the main channel from the south to rates that are less than pre-development flows.’” The City argues that the trial court ignored the portions of the Regan Smith report that called for additional examination into the sink hole, channels, culverts, and 100-year storm event. In our opinion, the trial court did not mention this because it was not relevant. If the flow is “less than pre-development flows,” the effect of the PUD can be nothing but beneficial to the downstream landowners. It appears that the report called for these additional examinations because of flooding events that have already taken place downstream.” Id.

“After a thorough examination of the record, we are convinced that the trial court was correct in its determination that there was no material evidence to support the Lebanon City Council’s decision.” Id.