Sanga v. City of Eugene

(1) Under ORS 197.825(2)(a), where a petitioner fails to raise issues in their local appeal statement, they have not “exhausted all remedies available by right” and are therefore precluded from raising them at LUBA. (2) In order to demonstrate prejudice from procedural error, thereby warranting reversal or remand of a limited land use decision under ORS 197.828(2)(d), a petitioner must explain with some specificity what would have been different or more complete had the local government followed the correct procedure. (3) In order to raise a procedural error at LUBA, a petitioner must preserve it by objecting below if there is an opportunity to do so.

The subject property is at the corner of an intersection and is accessible from both streets via driveways. Intervenors applied for review of a traffic impact analysis (TIA) in connection with their proposal to develop a convenience store and gas station on the property. Specifically, intervenors proposed to (1) remove one of the driveways and replace it with access via a shared easement further away from the intersection and (2) relocate the other driveway further away from the intersection. The planning director approved the TIA. Petitioner appealed the planning director’s decision, the hearings officer affirmed the decision, and this appeal followed.

In several assignments of error, petitioner argues that the city improperly construed several Eugene Code (EC) provisions because it failed to require improvements to address the additional traffic the proposal will generate, that its decision was not based in substantial evidence because the TIA relied on the shared easement when no easement existed at the time of approval, that it erred in failing to impose a condition of approval requiring intervenors to secure that easement, and that it erred in failing to address other applicable EC provisions. 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 petitioner’s local appeal statement did not raise these issues before the hearings officer but instead made general statements regarding petitioner’s concern with increased traffic, LUBA agrees with intervenors that petitioner is precluded from raising them at LUBA. These assignments of error are therefore denied.

In the fourth assignment of error, petitioner argues the city committed procedural error in failing to provide him with notice of the application. Under ORS 197.828(2)(d), LUBA will reverse or remand a limited land use decision if a local government commits procedural error which prejudiced the petitioner’s substantial rights. Because petitioner has not explained with some specificity what would have been different or more complete had the city followed the correct procedures, and because petitioner failed to show that they preserved the issue by objecting to it below, the fourth assignment of error is denied, and the city’s decision is AFFIRMED.