Aboud vs. City of Stayton

LUBA has the authority to reverse or remand a local government decision if the local government failed to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights of the petitioner.

Petitioner appeals a city council decision that approves a modification to a previously approved site plan for a commercial use in a commercial zone. In 2017, a new lessee filed an application with the city to modify a 2013 site plan to allow the placement of a drive-through coffee kiosk. The planning staff found that new lessee’s application was classified as a minor modification and notified petitioner, a neighboring property owner. After review, the planning staff approved the modification with conditions. The city council appealed the decision by conducting a public hearing and approved the application with additional conditions. Petitioner subsequently appealed.

On the first assignment of error, petitioner first argued that the application can only be approved as a new site plan and not a “modification” of any kind, because the 2013 site plan is now four years old, the site has been vacant, the current applicant is not the former applicant, and the 2013 approval was for a season product stand and not a higher impact commercial use. The city council argued that the site plan has not changed and the closure of the business and the vacant status does not cause the site plan approval to expire. LUBA rejected petitioner’s first argument because petitioner did not challenge those findings or point to any flaws in the city council’s code interpretations. Petitioner then argued that the city council erred in approving the application as a minor modification, rather than reviewing the application as a major modification.

Petitioner argued that, under City of Stayton Municipal Code (SMC) 17.04.100, at least one of the criteria was met to classify the modification as a major modification. LUBA has the authority to reverse or remand a local government decision if the local government failed to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights of the petitioner. LUBA agreed with petitioner that it was a major modification. In response, the city argued that the planning staff are the review authority for an application for a minor modification, while a major modification requires a public hearing. The city council pointed out that a public hearing was conducted under the SMC procedure making petitioner’s argument for a major modification review irrelevant because the review authority petitioner is seeking has been met. LUBA agreed with the city council and held that, since petitioner has not demonstrated that the city council misconstrued the SMC procedural provisions or that any misconstruction of law resulted in more than harmless error, the petitioner’s substantial rights were not prejudiced by the procedure the city followed. AFFIRMED.