Grahn v. City of Yamhill

ORS 197.835(9)(a)(B) provides that LUBA is to reverse or remand a land use decision if a local government failed to follow applicable procedures to the matter before it, and that failure prejudiced the substantial rights of petitioner.

Petitioner appeals a city council decision that approved a variance for a gymnasium and career technical education (“CTE”) center buildings. The proposed buildings would be located in the City’s R-2 Single-Family Residential Zone and would be 43.5 feet tall. The maximum allowable height is 35 feet. Thus, intervenor-respondent school district sought a variance. After holding hearings, the City granted an open record period. Petitioner submitted written testimony on June 14th. On June 20^th, intervenor submitted its response with new evidence. The City granted the variance a day later, and petitioner subsequently appealed the decision.

Petitioner seeks to remand the matter, claiming the City erroneously accepted new evidence and argument without giving petitioner an opportunity to rebut, thus prejudicing petitioner’s substantial rights. Petitioner’s June 14^th letter is best described as legal argument rather than evidence. LUBA states that regardless of the nature of the letter, the school district’s right following submittal of the letter was a right to respond to that letter. Therefore, intervenor’s June 20^th letter needed to be limited to a response to the evidence submitted in petitioner’s June 14^th letter. Because the City should have either rejected the additional evidence submitted by the school district, or given petitioner an opportunity to rebut that additional evidence, LUBA remands the matter for the City to identify and reject all evidence included in the school district’s June 20^th letter, or allow petitioner an opportunity to rebut that evidence. REMANDED.