Pennock v. City of Bandon

Under ORS 197.835(3), LUBA's review is limited to the record unless one of the circumstances identified in ORS 197.835(4) applies; when a party relies upon extra-record evidence, that party must argue that one of the circumstances identified in ORS 197.835(4) applies or, absent such an argument, LUBA's review will remain limited to the record.

Gary Pennock and Rose Rex Z-Romano, petitioners, challenged the city’s approval of a site plan and conditional use permit for a single family dwelling on property that is partially located within the Coquille River, is subject to a Shoreland Overlay, and is located within the 100-year floodplain. Following the city’s approval, petitioners appealed.

Petitioners’ fourth assignment of error—challenging approval of a private septic system rather than requiring use of the city’s sewer system—relies on Resolution 95-12, which prohibits extension of the city’s sewer system into the South Jetty floodplain outside the Local Improvement District; however, LUBA denied the fourth assignment of error because Resolution 95-12 does not address the approval of private septic systems in that area. In petitioners’ third assignment of error, they contend that Bandon Municipal Code (BMC) 17.92.040(F) requires that “[a]ll required public facilities [. . .] are available or can be made available by the applicant” and that the city erred by finding the proposal complies with BMC 17.92.040(F). LUBA looked to the city’s decision, and determined that the public sewer system is a “required” public facility because the city decision “requires” that the property connect to the public system as soon as it is “available.” Based on that interpretation of the city’s decision, LUBA determined that if the public sewer system is a required public facility that is “not available and cannot be made available consistent with Resolution 95-12,” then the city could not have found compliance with BMC 17.92.040(F) because the property would be connected to a private, on-site septic system. LUBA held that remand is required for the city to explain how, consistent with BMC 17.92.040(F), the proposal can be approved based on a proposal to use a private septic system. REMANDED.