Carroll v. City of Malin

The mere fact that a decision-maker is related to individuals who own property close to an applicant and who oppose the applicant’s project does not establish that the decision-maker is motivated by improper bias.

Petitioner appeals a city decision denying his application for a zone change to 8 of his city-lots from commercial to residential. In the first assignment of error, petitioner argues the city committed procedural error that prejudiced his substantial rights since 2 city councilors failed to disclose ex parte contacts, since a biased city councilor was allowed to participate, and since that same city councilor had a conflict of interest. Specifically, petitioner argues the city councilor at issue has family and friends who live across the street from petitioner, and that a vote to approve the application would have resulted in a detriment to the city councilor’s familial and personal relationships.

Under ORS 227.180(3), members of a decision-making body must disclose ex parte contacts. Under case law, bias disqualification requires that the elected local official’s bias be actual, not merely apparent, and be such that the decision-maker has so prejudged the particular matter as to be incapable of determining its merits on the basis of the evidence and arguments presented. Under ORS 244.020(1), a conflict of interest is defined as any action, decision, or recommendation by a person acting in a capacity as a public official, the effect of which would be to the private pecuniary benefit or detriment of the person, their relatives, or any business with which they or their relatives are associated. Because petitioner does not support his allegations of ex parte communication with evidence, because the mere fact that a decision-maker is related to individuals who own property close to an applicant and who oppose the applicant’s project does not establish that the decision-maker is motivated by improper bias, and because petitioner alleges no conflict involving financial or pecuniary interests, the first assignment of error is denied.

Petitioner’s third, fourth and fifth assignments of error challenge the city’s application of Land Use and Development Ordinance (LUDO) 152.087(2), which requires that a zone change be justified by, among other things, a showing of public need for the rezoning. Petitioner argues that substantial evidence in the record supports a conclusion that LUDO 152.087(2) was satisfied. However, LUBA has held that the decision maker’s task is not to determine whether the applicant has provided “substantial evidence” to support compliance with approval standards, but to weigh all of the evidence to determine whether the applicant has met its burden of proof to demonstrate that the approval standards are satisfied. Because the city reasonably relied on a staff report concluding that it had a surplus of residential land and a deficit of commercial land, LUBA concludes its decision is supported by substantial evidence.

Petitioner also argues the city’s findings are inadequate and fail to explain the basis for their denial of his application. LUBA agrees with the city that, by adopting the staff report, it effectively explained that the application could not satisfy LUDO 152.087(2) as long as there was a surplus of residential land and a deficit of commercial land. The third, fourth, and fifth assignments of error are therefore denied and the city’s decision is AFFIRMED.