Sage Equities LLC v. City of Portland

Under Fasano v. Washington County, 264 Or 574 (1973), a petitioner is entitled to an opportunity to respond to new evidence, and where a local government introduces evidence that represents a new issue, a petitioner must be given an opportunity to address the new issue before the local government makes a decision based thereupon; nevertheless, even if a local government makes a decision without giving a petitioner opportunity to address the new issue, such a procedural error requires remand under OAR 661-010-0071(2) rather than reversal under ORS 197.835(10)(a)(A).

Sage Equities, LLC and Gerry Engler, petitioners, appealed the city’s decision denying their application to create two 2,684-square foot lots in a single-family residential zone (R2.5). The city denied the application after it concluded that the proposed lots were noncompliant with: (1) Portland City Code (PCC) 33.611.200(C) standards to create a lot less than 36 feet wide; (2) PCC 33.266.120(D) standards for parking space and shared driveways; (3) PCC 33.630 standards requiring preservation of a certain percentage of existing trees on development sites; and (4) PCC 33.641 transportation impact standards. On appeal, LUBA addressed petitioners’ three assignments of error.

Petitioners’ first and second assignments of error challenged the adequacy of the city’s determination that the application did not comply with PCC 33.611.200(C)(2)(a), which provides that “[o]n balance, the proposed lots will have dimensions . . . consistent with the purpose of this section[.]” LUBA examined the purposes to be balanced—namely, that each lot be large enough for a “reasonably-sized detached house” and that “[l]ots are of a size and shape that development on each lot can meet the development standards of the R2.5 zone”—and agreed with petitioners that the city’s findings were inadequate because the city had failed to engage in an express balancing or overall consideration of the different purposes. In their third assignment of error, petitioners challenged the city’s reliance on “last-minute evidence from the city forester (to which petitioners had no chance to respond)” regarding a nuisance tree and petitioners’ proposed preservation thereof to conclude the tree preservation requirements of PCC 33.630 were not met. LUBA agreed with petitioners that the city erred by failing to provide petitioners with a reasonable opportunity to respond to the city forester’s evidence or to propose conditions or alternatives to ensure compliance with PCC 33.630. REMANDED.