J4J v. City of Jefferson

Under ORS 197.835(9)(a)(B), the Land Use Board of Appeals will reverse or remand a land use decision under review based on procedural errors, only if the Board finds that the local government failed to follow procedural rules which prejudiced substantial rights of the petitioner.

     Intervenor owns a 14.76-acre parcel located in the City of Jefferson’s urban growth boundary. The city previously denied the intervenor’s petition to annex the property. Following the enactment of Senate Bill (SB) 1573, which provided that regardless of city ordinance or charter, “where all owners of land in a territory petition the city for annexation, the city ‘shall annex the territory without submitting the proposal to the electors of the city,’” the intervenor again petitioned for annexation. The intervenor also sought a zoning change to Low Density Residential zone. After an evidentiary hearing, the planning commission recommended approval. The city council then held a hearing and ultimately approved the annexation and zoning proposals by adopting Ordinance 695.

     The Petitioner challenged Ordinance 695, arguing three assignments of error, each containing multiple sub-assignments of error. Petitioner’s second assignment of error alleged that (1) the city erred in approving the proposed annexation in the form of an ordinance rather than a resolution, and (2) the city’s findings regarding compliance with the annexation standards at Jefferson Development Code (JDC) 12.76.020 are inadequate and not supported by substantial evidence.

     Petitioner first contended that the city did not comply with JDC 12.76.010(C) because it failed to adopt any findings explaining how the city complied with the mandatory requirement to approve the annexation via resolution. Intervenor responded that the city’s choice to approve the annexation via an ordinance rather than a resolution followed by an ordinance is a procedural error, and petitioner failed to demonstrate that any procedural error prejudiced its substantial rights. LUBA agreed, as ORS 197.835(9)(a)(B) requires the petitioner to demonstrate that the error prejudiced its substantial rights. LUBA stated that the petitioner cannot avoid its obligation to show prejudice to its substantial rights by challenging “the absence of findings addressing a procedural issue.” REMANDED.