Johnson v. City of Philomath

(1) Where an opponent argues before a local government that an application is incomplete, but does not argue that a particular state statute prohibits the local government from processing incomplete applications, the opponent may not raise compliance with the state statute for the first time on appeal to LUBA. (2) Where a party argues before a local government that a staff report was available only five days before a hearing, but does not argue that a particular local code provision requires the local government to provide staff reports seven days prior to the hearing, the party may not raise compliance with the local code provision for the first time on appeal to LUBA.

Intervenors applied to develop indoor and outdoor storage facilities, a recreational vehicle park, and industrial buildings on property zoned Industrial Park (IP) and Heavy Industrial (HI). The planning commission approved parts of the application and denied others. The city approved the application and this appeal followed.

In twelve assignments of error, petitioners argue that the city violated ORS 227.178(1) in processing the application since it was incomplete; that the city’s findings addressing water capacity are inadequate and not based on substantial evidence because they do not account for previously approved developments; that intervenors’ traffic impact analyses (TIAs) are not substantial evidence that certain Philomath Comprehensive Plan (PCP) policies are met because they do not consider background traffic from other developments; that the city committed a variety of procedural errors, including making the staff report available only five days prior to the hearing, rather than the seven days required by Philomath Municipal Code 18.105.070(4); that the city’s decision is inconsistent with various PCP policies; that intervenors failed to provide a storm drainage plan; and that the city failed to comply with Statewide Planning Goal 1 (Citizen Involvement) because it did not acknowledge or obtain the recommendations of the Committee of Citizen Involvement.

Although petitioners argued below that the application was incomplete, LUBA agrees with intervenors that, because they did not argue below that ORS 227.178(1) prohibited the city from processing incomplete applications, that issue was waived. While intervenors argue petitioners did not raise the issue of water capacity below, LUBA concludes they were not required to do so since the relevant findings were adopted for the first time in the city’s final decision. However, LUBA agrees with intervenors that the city’s findings were in fact adequate, supported by evidence, and responded to petitioners’ concerns. In addition, LUBA agrees with intervenors that the TIAs were substantial evidence that no off-site mitigation was required, regardless of the fact that they did not include other developments, and that, in any event, intervenors’ traffic engineer provided evidence that acceptable levels of service would be attained even if the background traffic were included. LUBA also concludes that, while petitioners argued below that the staff report was available only five days prior to the hearing, that was not sufficient to raise compliance with PMC 18.105.070(4). Because petitioners failed both to raise the alleged procedural errors below and to establish that those errors violated their substantial rights, LUBA agrees with intervenors that those errors provide no basis for reversal or remand. Finally, because petitioners did not raise compliance with certain PCP policies and Goal 1 below, because, even if they had been raised below, petitioners do not establish that those provisions were applicable to the decision, and because petitioners do not acknowledge or address the city’s findings or evidence in the record addressing the provisions that were applicable, these assignments of error are denied. The city’s decision is therefore AFFIRMED.