Willamette Oaks, LLC v. City of Eugene

Under ORAP 5.45(1) provides, in part, that “[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court” and must “demonstrate that the question or issue presented by the assignment of error timely and properly was raised and preserved in the lower court.” Barnes v. City of Hillsboro, 239 Or App 73, 81, 243 P3d 139 (2010).

Petitioner sought judicial review of an opinion by LUBA. Petitioner assigned error to LUBA affirmed a decision finding the City of Eugene compliant with a PUD condition of approval. On appeal, Petitioner relied on three previous cases by LUBA in which the hearing officer was required to apply the ITE Manual codes for which the final PUD approval was obtained. In response, Respondent argued that LUBA correctly decided the issue. Under ORAP 5.45(1) provides, in part, that “[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court” and must “demonstrate that the question or issue presented by the assignment of error timely and properly was raised and preserved in the lower court.” Barnes v. City of Hillsboro, 239 Or App 73, 81, 243 P3d 139 (2010). The Court held that Petitioner did not provide sufficient evidence that LUBA misapplied the standard. Affirmed.