Niederer v. City of Albany

(1) Under ORS197.835(9)(a)(B), while political predispositions do not require recusal, statements which demonstrate that an elected official has prejudged a matter such that they are incapable of making a decision based on the evidence and argument before them during the local proceeding may be sufficient to establish bias. (2) While findings need not take a particular form and “no magic words need be employed” in order to be reviewable, they must “establish the factual and legal basis for the particular conclusions drawn in a challenged decision.”

Petitioner appeals a city decision approving demolition of three historic contributing structures. The Landmark Advisory Committee (LAC) approved the demolition request with a 365-day stay to allow for rehabilitation and restoration efforts. The next day, a city councilor made an online statement criticizing the LAC’s decision to impose a stay. That month, the council on its own motion voted to review the LAC decision, whereby it reduced the stay to 90 days.

An interested party in a quasi-judicial land use proceeding has a substantial right to an impartial decision maker. In the fourth assignment of error, petitioner argues the city’s decision was tainted by the participation of the councilor who made the online statement. LUBA agrees with petitioner that, while a mere political predisposition does not require recusal, the councilor’s online statement was directed specifically to intervenor’s request, evidences his prior commitment to approve the application, and demonstrates that he had prejudged the matter such that he was incapable of making a decision based on the evidence and argument before him during the council proceeding. Because LUBA does not know whether and to what extent the councilor’s participation influenced the decision, remand is appropriate. The fourth assignment of error is therefore sustained.

OAR 660-023-0200(8)(a) requires local governments to protect National Register Resources by review of demolition that considers a list of factors. In the first assignment of error, petitioner argues the city failed to adopt written findings demonstrating that it considered these factors. Because the city’s one-page decision contains no findings or conclusions beyond a bare assertion that the demolition approval is based on unspecified criteria and supporting documentation, LUBA agrees with petitioner that it does not contain adequate findings. While findings need not take a particular form and “no magic words need be employed” in order to be reviewable, they must “establish the factual and legal basis for the particular conclusions drawn in a challenged decision.” In addition, because a local government that intends to incorporate another document into its decision must make that incorporation reasonably clear, and since the city’s decision itself did not identify the staff report as incorporated by reference, LUBA concludes that the city did not adopt or incorporate the staff report into its final decision. The first assignment of error is therefore sustained and the city’s decision is REMANDED.