Marek v. City of Corvallis

(1) Under ORS 197.835(4), defective notice does not divest local governments of jurisdiction over applications but allows parties to raise issues related to missing approval criteria for the first time at LUBA. (2) Because decision-makers are not participants in local proceedings, issues raised by them are not preserved for purposes of ORS 197.763(1). (3) Under ORS 197.825(2)(a), where a petitioner fails to raise an issue in their appeal statement, they have not “exhausted all remedies available by right” and are therefore precluded from raising it at LUBA.

Corvallis Land Development Code (LDC) 3.36 divides intervenor-university’s campus into nine sectors and sets maximum building square footage and minimum open space for each sector. In order to develop student housing, intervenor applied to transfer building square footage and open space between sectors. The city approved the applications and this appeal followed.

In the first assignment of error, petitioners argue the city exceeded its jurisdiction in approving the applications because the public notices did not list several applicable comprehensive plan policies. LUBA agrees with intervenor that, while a local government approving an application over which it lacks jurisdiction provides a basis for reversal or remand under ORS 197.835(9)(a)(A), defective notice does not divest the city of jurisdiction. Instead, under ORS 197.835(4), defective notice merely allows parties to raise issues related to missing approval criteria for the first time at LUBA. However, because petitioners established neither that the policies were in fact applicable, nor that any defect in the notices prejudiced their substantial rights, the first assignment of error is denied.

Under LDC 3.36.40.05, the city must require intervenor to update its Campus Master Plan (CMP) when the planning period has expired. In the second assignment of error, petitioners argue that, because the planning period for intervenor’s CMP is 2004-2015, the city erred in failing to require an update. Intervenor responds that, under ORS 197.763(1), because petitioners failed to raise this issue prior to the close of the initial evidentiary hearing, they may not raise it at LUBA. Petitioners reply that “[t]he text of the CMP preserves the error” and that the issue was raised by both the city council during its deliberations as well as planning staff. LUBA agrees with intervenor that (1) stating that “[t]he text of the CMP preserves the error” is insufficient to demonstrate compliance with ORS 197.763(1), (2) issues raised by decision-makers are not raised by participants, (3) even if city councilors could be participants, none raised this issue before the close of the record and, (4) while planning staff can be participants, they did not raise this issue before the close of the record. The second assignment of error is therefore denied.

In the third assignment of error, petitioners argue there is not substantial evidence in the record to support the city’s conclusion that the proposal is compatible with respect to off-site parking impacts. Under ORS 197.825(2)(a), LUBA’s jurisdiction is limited to those cases in which the petitioner has “exhausted all remedies available by right.” Because exhaustion principles require not only that an avenue of review be pursued, but also that particular claims be presented to the body whose review must be exhausted, and because petitioners failed to raise this issue in their appeal statement, LUBA agrees with intervenor that they are precluded from raising it at LUBA. The third assignment of error is therefore denied, and the city’s decision is AFFIRMED.