Leyden v. City of Eugene

Under ORS 197.015(10)(b)(B), LUBA’s jurisdiction depends on applicable land use standards and does not turn on comments or arguments in the record that led to the decision. Just because a decision is wrong, erroneous, or unauthorized does not mean that it qualifies as a land use decision subject to LUBA’s jurisdiction.

Intervenors seek to develop a neighborhood center. In 2015, the city issued a zone verification and, in 2018, the city approved with conditions a site plan review, traffic impact analysis, and adjustment review for the development. The city subsequently granted two building permits, and this appeal followed. Under ORS 197.015(10)(b)(B), LUBA lacks jurisdiction to review building permit decisions made under clear and objective standards. Standards are not clear and objective if they are ambiguous—that is, if they can plausibly be interpreted in more than one way—or if they impose subjective, value-laden analyses. The city argues that, because it issued the building permits under clear and objective standards, LUBA lacks jurisdiction. 

Under Eugene Code (EC) 9.6725(9), parking lot lighting must be designed to “provide the minimum lighting necessary to ensure adequate vision and comfort.” Under EC 9.6725(12), lighting for outdoor performance facilities is intended to “allow adequate lighting . . . while minimizing skyglow, [and] reducing glare and unwanted illumination.” Petitioners argue that, because terms such as “minimum,” “necessary,” “adequate,” and “unwanted” require subjective determinations, these standards are not clear and objective. LUBA agrees with the city that these terms do not represent independent standards that the city applied, but rather describe the desired results achieved by compliance with design standards which are themselves clear and objective. 

Petitioners also argue the city exercised discretion by relying on an email to determine that all land use applications had been approved, and that the city erroneously failed to apply conditional and special use standards to the building permit applications. Because petitioners do not cite any standards that require the city to independently verify whether all applicable land use applications have been approved, or whether the previously approved uses are subject to additional approvals, and because the building permit applications match the previously approved site plan, LUBA concludes no interpretation was required in issuing them. 

Under EC 9.6410(1)(a), required off-street parking must be under the same ownership as the development site unless there is a city approved agreement binding the parking area to the development site. Petitioners argue the city erred in concluding that EC 9.6410(1)(a) could be satisfied by requiring a copy of a shared parking agreement prior to issuance of an occupancy permit, rather than prior to issuance of building permits. Because petitioners do not establish that EC 9.6410(1)(a) applies to building permit applications, LUBA concludes that a dispute over whether it is satisfied does not establish jurisdiction over the building permit decisions. The appeals are therefore TRANSFERRED.