Conte v. City of Eugene

The fact that application requirements may not have been satisfied provides no basis for remand unless the failure to satisfy the requirements resulted in non-compliance with mandatory approval criteria.

Petitioner appeals a city decision approving an application for final planned unit development (PUD) approval. In 2015, intervenor applied for tentative PUD approval (TPUD Application), which the city approved. In 2016, while the TPUD Application decision was being appealed, intervenor applied for final PUD approval (FPUD Application). On remand in 2017, the city once again approved the TPUD Application with the condition that intervenor make street improvements in order to comply with Eugene Code (EC) 9.8320(5), which requires that the PUD provide “safe and adequate” transportation systems to nearby areas. In 2018, the city approved intervenor’s FPUD Application. This appeal followed.

In order to approve an FPUD Application, EC 9.8365 requires the city to determine that the final PUD plan conforms with the approved tentative PUD plan and all conditions imposed therein. In its first assignment of error, petitioner argues that, since intervenor’s FPUD Application did not contain all of the application requirements in EC 9.8360, including final maps, supplemental materials, and bonding or permitting for the required street improvements, intervenor’s application should not have been approved. LUBA rejects this argument, agreeing with the city that application requirements are not approval criteria and that failure to satisfy them may only serve as a basis to deny an application if those requirements are necessary to demonstrate compliance with approval criteria. Because petitioner does not establish that the city erred in deciding that intervenor’s FPUD Application satisfies the approval criteria in EC 9.8365, the first assignment of error is denied.

In its second assignment of error, petitioner argues the city committed procedural errors that prejudiced its substantial rights. Specifically, petitioner agues the final PUD decision should have been taken up by the city council instead of the hearings officer, intervenor should have been required to submit a new FPUD Application after the initial TPUD Application decision was remanded, and the city should have required a new application completeness review on remand. LUBA rejects each of these arguments because petitioner either fails to explain how the procedure the city followed prejudiced its substantial rights or failed to preserve the issue. The second assignment of error is therefore denied and the city’s decision is AFFIRMED.