Oakleigh-McClure Neighbors et al v. City of Eugene

Failure to provide an intervening party with notice of a hearings officer’s decision and with notice of an appeal hearing prejudices the intervening party’s right to participate in the planning commission hearing on the appeal of that hearings officer’s decision.

In Oakleigh-McClure Neighbors v. City of Eugene, __ Or LUBA __ (LUBA No. 2014-001, August 21, 2014) (Oakleigh I), LUBA remanded a City of Eugene decision approving a tentative planned unit development application. When Simon Trautman, intervenor-petitioner, filed a petition for review, LUBA denied Trautman's motion to intervene for failing to meet the deadline set out in ORS 197.830(7). The Court of Appeals reversed LUBA’s denial of Trautman’s motion to intervene, concluding the motion was timely filed under ORS 197.830(7) and therefore allowed. See Oakleigh-McClure Neighbors et al. v. City of Eugene, 269 Or. App. 176, 188 (Feb. 19, 2015) (Oakleigh II). On remand, Trautman and intervenor-petitioner Paul Conte moved to allow additional briefing on the assignment of error raised in Trautman’s petition for review. LUBA allowed petitioners, the city, and intervenor-respondent Oakleigh Meadows Co-Housing, LLC (Meadows) to respond to the motion.

In its response brief, Meadows sought to introduce evidence of Trautman’s Idaho residence during earlier proceedings, but LUBA denied the motion (questioning the relevance of such an argument). However, Trautman’s reply brief to Meadows’s response brief was allowed. Therein, Trautman replied that his residency in Idaho did not bear on whether the city was obligated to provide him with notices of the decision and the appeal hearing. LUBA agreed, and found that the city’s failure to provide Trautman with notice of the hearings officer’s decision and with notice of the appeal hearing prejudiced his right to participate in the planning commission hearing on the appeal of that hearings officer’s decision. Because ORS 1974.835(9)(a)(B) authorizes LUBA to remand for procedural errors prejudicing substantial rights of petitioners, specifically the right to an adequate opportunity to prepare and submit their case and the right to a full and fair hearing. REMANDED.