Carkulis v. Lincoln County

Under ORS 197.835(9)(a)(B), in order to establish a procedural error, the petitioner must identify the procedure allegedly violated.

Intervenor applied to amend its planned development approval to incorporate an aerial challenge course. Finding that Lincoln County Code (LCC) 1.1125 allows for planned development amendments, and that LCC 1.1380 also allows for such amendments if the applicant demonstrates that the development continues to meet the approval criteria in LCC 1.1380(3), the county approved the application. This appeal followed.

In the first subassignment of error, petitioner argues the county improperly construed LCC 1.1380 or, alternatively, that it failed to adopt required findings demonstrating how the application complies with LCC 1.1380(3)(c)(C). Respondents respond that, under ORS 197.829(1), LUBA must affirm the county’s interpretation of LCC 1.1380 and, alternatively, that the county did dopt findings regarding LCC 1.1380(3)(c)(C). Because petitioner does not explain why LUBA is not required to affirm the county’s interpretation under ORS 197.820(1), and because petitioner simply ignores the county’s findings regarding LCC 1.1380(3)(c)(C), LUBA agrees with respondents. In the second subassignment of error, petitioner argues the county improperly construed LCC 1.1225. LUBA agrees with respondents that, because the county’s reliance on LCC 1.1225 was an alternative independent basis for the decision, any error it committed does not provide a basis for reversal or remand. The first assignment of error is therefore denied. 

Under ORS 197.835(9)(a)(B), LUBA must reverse or remand a decision if the local government failed to follow the applicable procedures in a manner that prejudiced the petitioner’s substantial rights. In the second assignment of error, petitioner argues the county committed procedural error that prejudiced his substantial rights when it failed to consider a written statement that he submitted at a hearing. LUBA agrees with respondents that, because petitioner has neither explained why the county was required to consider his statement nor established that the county did in fact fail to do so, petitioner has not developed an argument for review. The second assignment of error is therefore denied and the city’s decision is AFFIRMED.