Regency Centers, L.P. v. Washington County

A Washington County Traffic Control Master Plan allowed, but did not require, the County to leave a traffic signal in place at the intersection of Tualatin Sherwood Road and Petitioners' driveways. The final order of the Land Use Board of Appeals properly held jurisdiction over the decision, and did not err in substance under ORS 197.850(9)(a) in remanding the decision to the County to determine whether the traffic signal must be left in place.

In 2005, Washington County (the County) identified improvement of Tualatin Sherwood Road in the area of the property owned by Petitioners Takfal Properties, LLC and MGP X Properties, LLC (Petitioners). As a part of the improvement process, the County formed a project team to assess possible alternatives for implementing the project. The team’s proposal for implementation was to remove the traffic signal at the intersection of Tualatin Sherwood Road and Petitioners’ driveways, limiting ingress and egress to right turns only. The County’s director of land use and transportation approved the team’s recommendation; Petitioners appealed the final order of the Land Use Board of Appeals (LUBA), which remanded the County’s decision to remove the traffic signal. On appeal, the County alleged that LUBA improperly asserted jurisdiction over the county’s decision and erred in remanding to the County to determine whether its decision triggered notice and hearing procedures under ORS 374.300 et seq. County’s allegations of error affirmed without discussion. Petitioners alleged eight assignments of error, of which LUBA denied four; Petitioners challenged three of the four assignments of error denied by LUBA. The Court reviewed the challenges for whether LUBA’s order was unlawful in substance or procedure under ORS 197.850(9)(a). Petitioners’ first assignment of error alleged the city’s Traffic Control Master Plan (TCMP) required the signal to be left in place. LUBA asserted the TCMP Petitioners included additional portions of the TCMP that were not included in the record below, and that the record indicated that the TCMP allowed, but did not require, a traffic signal in the subject location. The Court held that Petitioners had not preserved the issue as to the additional material, and affirmed LUBA’s position that the signal may, but not must, be left in place and was not unlawful in substance. Petitioners’ fourth assignment of error was denied by LUBA because what LUBA was requiring the County to do on remand met the requirements of OAR 660-012-0050(3)(b). The Court held that the fourth assignment of error would add nothing to LUBA’s disposition on remand, and was not unlawful in substance. Petitioners’ seventh assignment of error was that because the exception to the definition of permit in ORS 215.403(4)(c) did not apply, the County’s decision must be a permit decision. LUBA denied this allegation as insufficiently developed for review because Petitioners failed to support their assertion with any argument as to why the director’s decision involves ‘discretionary approval’ or is ‘proposed development of land,’ and is a ‘permit’ under ORS 215.402(4). The Court held that the allegation was insufficiently developed for review and LUBA was not required to present material that could have support Petitioners’ argument; therefore, LUBA’s order was not unlawful in substance in denying Petitioners’ seventh assignment of error. Affirmed on petition and cross-petition with costs allowed payable by Petitioner on Petition and Cross-Petitioners on Cross-Petitions.