Wiper v. City of Eugene

Under ORS 227.173(3) an application for permit, limited land use decision, or zone change shall be approved or denied based on a brief statement explaining the criteria relevant to the decision and stating the facts relied on to render the decision, and is not required to address standards that might apply to a hypothetical future building permit application for the approved CIR housing.

     Petitioner appealed a decision by the city approving a conditional use permit (CUP). The April 2002 CUP approval was for a 172 unit housing development of Controlled Income Rent (CIR) housing.

     The petitioner alleged three assignments of error. The petitioner’s first and second arguments alleged error under the “Goal Post Rule” at ORS 227.178(3)(a). The Goal Post Rule provides that if an application for permit, limited land decision, or zone change was complete when first submitted, or the applicant submits the requested additional information within 180 days of the first submittal date, approval or denial shall be based upon the standards and criteria that were applicable at the date the application was first submitted.

     After the petitioner’s application was filed, the Eugene Code changed to require that proposed development of CIR housing receive approval through the city’s planned development review process, or through review for compliance with the city’s multi-family housing standards. The petitioner argued that the city erred by failing to address his argument that the Goal Post Rule prohibits the city from applying the standards and criteria of the new Eugene Code (New Code) to future applications for permits for the CIR housing that it approved.

     LUBA concluded that the city did not err by not addressing the Goal Post Rule argument. LUBA found the city complied with ORS 227.173(3). ORS 227.173(3) requires “approval or denial of a permit application * * * shall be based upon and accompanied by a brief statement that explains the criteria and standards considered relevant to the decision, states the facts relied upon in rendering the decision and explains the  justification for the decision based on the criteria, standards and facts set forth.” LUBA determined that under ORS 227.173(3) the city was not required to address future compliance. REMANDED.