Pinnacle Alliance Group LLC v. City of Sisters

Pursuant to ORS 197.835(11)(b), LUBA may overlook minor discrepancies in a local government's findings; however, the statute does not permit LUBA to overlook a local government's total failure to adequately identify any findings, particularly when it is unclear in the record as to which document comprising the alleged findings the local government relied upon in making its decision.

Pinnacle Alliance Group, LLC (Pinnacle), appealed a city council decision denying Pinnacle’s local appeal and affirming the city planning commission’s approval of a new site plan and a modification of a previously approved master plan to allow construction of a senior assisted living facility. A master plan and site plan for a portion of McKenzie Meadow Village (MMV), a proposed multi-phase, primarily residential, mixed use development, were first approved in 2010. Pinnacle appealed a 2015 modification of that master plan and a new site plan for a portion of the first phase of MMV that eliminated an 82-unit senior assisted and independent living facility in lieu of 45 units of assisted living and 12 memory care units alongside an unexplained “future addition.”

Pinnacle’s second assignment of error contended that the city decision was not supported by adequate findings. In its review of the record, LUBA determined that as part of the city’s decision it had adopted the findings of fact located in its staff report, yet failed to include the staff report as an exhibit to its decision. LUBA identified two staff reports that LUBA deemed “reasonable possibilities,” but noted that neither were identified as an exhibit to or attachment to the city’s decision. LUBA utilized a test set out in Gonzalez v. Lane County, 24 Or LUBA 251 (1992), to assess whether the city had adequately incorporated documents as supporting findings by looking to whether the city had clearly (1) indicated its intent to do so, and (2) identified the document (or portions thereof) so incorporated. LUBA reasoned that numerous staff reports in the record left “a reasonable person reading the decision” unable to determine which staff report the city intended to incorporate, and the held that the city fell “considerably short” on the second Gonzalez requirement. REMANDED.