Roten v. City of Turner

Under ORS 197.835(4)(a), a petitioner may raise a local government’s failure to cite applicable criteria in its notices, staff report, or decision for the first time on appeal to LUBA.

Petitioners appeal a city decision approving a 47-lot subdivision. The subject property is located in the Hillside Development Overlay District (HDOD), development in which is subject to criteria contained in City of Turner Land Use Development Code (TDC) 4.230.

In their fourth assignment of error, petitioners argue the city erred in failing to adopt findings regarding whether intervenor’s application satisfies the provisions of TDC 4.230. Furthermore, because TDC 4.230 was not cited in any of the notices sent or staff reports prepared by the city, petitioners argue ORS 197.835(4)(a) allows them to raise the issue for the first time on appeal. LUBA agrees with petitioners that, while a staff report included a statement that development in the HDOD “is allowed to have limited lengths of steeper grades,” no operative language of TDC 4.230 was cited to alert the public that it was an applicable approval criterion and petitioners are therefore allowed to raise the issue on appeal. In addition, because nothing in the city’s findings addresses the HDOD standards or adopts an interpretation that TDC 4.230 does not apply at this phase, remand is required for the city to address TDC 4.230 in the first instance. The fourth assignment of error is sustained. Petitioners’ remaining assignments of error are denied because they were not raised below, because they are undeveloped, or because substantial evidence in the record supports the city’s decision. The city’s decision is therefore REMANDED.