McCaffree v. Coos County

Where a party has the opportunity to object to a procedural error before the local government during a legislative proceeding, but fails to do so, that error cannot constitute grounds for reversal or remand of the resulting decision. This obligation exists independently of the “raise it or waive it” requirement of ORS 197.763(1), which does not apply to legislative proceedings.

Petitioner appeals various amendments to the county’s land development ordinance (LDO). Under ORS 203.045(3), the county must conduct two readings of proposed ordinances before adopting them. In the first subassignment of error, petitioner argues the county violated ORS 203.045(3) by failing to conduct those readings. The county responds that, because petitioner failed to object to the alleged procedural error below, she waived that argument under ORS 197.763(1). Although the “raise it or waive it” requirement of ORS 197.763(1) does not apply to legislative proceedings, LUBA agrees with the county that, where a party has the opportunity to object to a procedural error before the local government, but fails to do so, that error cannot be assigned as grounds for reversal or remand of the resulting decision. Because petitioner does not point to any place in the record demonstrating that she objected to the county’s procedure, this subassignment of error is denied. 

Under ORS 197.610(1), the county must submit proposed LDO amendments to the Department of Land Conservation and Development (DLCD) before holding its first evidentiary hearing on the proposal. In the second subassignment of error, petitioner argues that, because the proposal was revised after it was submitted to DLCD, the county failed to provide adequate notice under ORS 197.610(1) and remand is therefore warranted. Because inadequate notice requires remand only in case of prejudice to the petitioner or another person’s substantial rights, and because petitioner neither establishes such prejudice nor explains why the revisions made the original notice inadequate, the second subassignment of error is denied.

Under Coos County Comprehensive Plan (CCCP) Section 5.1, a Citizen Advisory Committee (CAC) must aid planning staff in the direction of revising the comprehensive plan and implementing ordinance, and to communicate their concerns or support for those amendments prior to pubic hearings and determinations. In the third subassignment of error, petitioner argues that, because changes were made to the proposal after the CAC initially reviewed it, the amendments fail to comply with CCCP 5.1. LUBA agrees with the county that the role fo the CAC is to assist planning staff, and that nothing in CCCP 5.1 requires the CAC to review every proposed change to the CCCP or LDO prior to public hearings. The third subassignment of error is therefore denied, the third assignment of error is denied, and the county’s decision is AFFIRMED.