Knapp v. Jackson County

Under ORS 197.763(3)(b) and 197.835(4)(a), “applicable criteria” that are required to be listed in a notice of hearing do not include submittal or pre-application requirements.

In March 2014, Peter Britt Gardens Music and Arts Festival resubmitted an application–previously denied without prejudice because the city failed to provide notice of hearing–to modify a 2006 Certificate of Appropriateness to improve an existing gravel parking lot in Jacksonville’s South Oregon Street Historic Character Unit. The Historic Architectural Review Commission (HARC) approved the modification. On city council review, Knapp attempted to submit modified site plans, which the city council rejected as new evidence. The city council affirmed HARC’s decision, and Knapp appealed to LUBA. Knapp first argued that the city erred by waiving a Jacksonville Development Code (JDC) requirement for a filing fee and pre-application conference. LUBA denied the error due to failure of Knapp to object to the procedural error before the city council. Knapp argued that the asphalt parking lot would not conform to the “Character Criteria” for the historic district set forth in JDC 18.05.040(B), and that the approval of such was conclusory and inadequate. LUBA rejected this, finding that the HARC decision, adopted by the city council, contains the staff report detailing findings on this issue. Furthermore, they agreed with the city that asphalt paving conformed with the comprehensive plan. LUBA denied a contention that the city engineer’s opinion that the parking lot could not be constructed of pervious materials was unsupported by evidence, finding ample support for these conclusions. Knapp made an argument that the fill would violate a limit of twenty feet “from the edge of the shoulder of driveways and roads” which wasn’t addressed in the staff report. LUBA agreed, concluding that remand would be appropriate to resolve the spacing issue. Lastly, Knapp argued that the modified site plans should be accepted as restatement of existing evidence, but LUBA held that they were new evidence, denying their admission. REMANDED.