Goodpasture Partners LLC v. City of Eugene

Under Eugene Code 9.8370, a modification years later to an approved PUD is consistent with the original condition requiring a performance agreement where the condition leaves the establishment of a timetable to the performance agreement.

Willamette Oaks, LLC runs a retirement facility that has been constructed as a Planned Unit Development (PUD) to date in four out of five phases. The fifth phase has been the subject of modifications and extensions dating back to 1990. The final approval was given in July, 2013, setting commencement of construction at June 9, 2014 to be completed by June 9, 2015. This approval was subject to the condition of a Performance Agreement governing the timetables of construction and modifications. Approval was appealed to the hearings officer, who approved the recent modifications, and Goodpasture Partners, LLC (Goodpasture) appealed. Goodpasture challenged the modification as inconsistent with the PUD condition, arguing that the condition and the Performance Agreement disallow extensions. LUBA upheld the hearings officer’s decision, noting that nothing in the PUD condition or the performance agreement precluded extension of the schedule. Goodpasture next argued that the 1971 law under which the final PUD approval was granted should control extension rather than the 2001 law in place at the time of the Performance Agreement. LUBA held that the current law controlled because the parties had been treating the modifications of the Performance Agreement as PUD approvals. They held further that the hearings officer was correct to interpret the two laws as similar enough for the new law to be the “corresponding provision” of the former, and that Goodpasture had not identified why the modification would not have satisfied the old law. AFFIRMED.