Friends of Canemah v. City of Oregon City

ORS 197.835(9)(a)(B) allows LUBA to reverse or remand a land use decision of a local government if the local government made a procedural error and that error prejudiced the substantial rights of the petitioner.

Petitioner appeals a city commission decision denying their appeal of a Historic Review board decision approving 5 cottage style homes in Oregon city. The subject property is located in a historic overlay district. Thus, it was subject to review under the Oregon City Municipal Code. The historic review board (HRB) issued a certificate of appropriateness for the proposal and approved historic preservation incentives. Petitioner appealed to the city commission. The appeal was denied and this appeal followed.

On the first assignment of error, petitioners claim that their rights were substantially prejudiced by the commission’s refusal to accept Christine Kosinski’s letter when determining to allow an appeal. Oregon City Municipal Code 17.59.190 (D)(2) states that in order to appeal the HRB’s decision, the person must have participated orally or in writing before the HRB. The commission denied consideration of the letter on the basis that Kosinski did not participate in the proceeding before the HRB. It is undisputed that Kosinski did, in fact, participate before the board, and that petitioner’s rights were substantially prejudiced by the refusal. Therefore, it is appropriate to issue a remand. Respondents argue that even if petitioner’s rights are substantially prejudiced, Kosinski is not a party to this appeal. Moreover, because the commission’s decision was limited to only an evidentiary review, petitioners could not rely on any new evidence in the letter. LUBA agrees with respondent, determining that petitioners could have raised the legal arguments perhaps detailed in Kosinski’s letter, and therefore, LUBA denies the first assignment of error. AFFIRMED.