Matthews v. Lane County

In 2016, a hearings official approved a nonfarm dwelling on the subject property. A condition of that approval provided that any deviation from the approved site plan “shall require an application for a modification of conditions with the applicable fees subject to the Planning Director’s discretion.” In 2019, petitioner applied for planning director approval of a modification to enlarge the home site. Under Lane Code (LC) 14.090(5)(c), modification approvals must be made by the same approval authority as the original approval “unless the original decision allows modification by a different approval authority.” Concluding that petitioner was required to seek hearings official approval of the modification, the planning director denied the application. Petitioner appealed to the hearings official, which agreed with the planning director that petitioner was required to submit a different application type. Because petitioner submitted the wrong application type, the hearings official concluded that they lacked authority to review the application de novo and affirmed the denial without reaching the merits. This appeal followed.

In the first assignment of error, petitioner argued that the hearings official’s findings were inadequate to comply with ORS 215.416(9). Intervenor responded that petitioner did not raise that argument below and it was therefore waived under ORS 197.835(3). LUBA first concluded that findings challenges are generally not subject to waiver because allegedly deficient findings appear for the first time in the challenged decision. However, because the hearings official’s findings explained the relevant criteria, stated the facts relied upon, and explained the justification for the decision based on the criteria, LUBA concluded that the findings were adequate. The first assignment of error was therefore denied.

 In the second assignment of error, petitioner argued that the hearings official erred in concluding that they lacked authority to review the application de novo. Both the planning director and the hearings official concluded that the “subject to the Planning Director’s discretion” language in the 2016 condition of approval authorized the planning director to determine whether a modification application was required, not to review such a modification application itself where the original decision was made by a hearings official. LUBA agreed with petitioner that the 2016 condition of approval requires a modification application for all deviations from the approved site plan, and it does not authorize the planning director to determine that such an application is not required in some cases. Accordingly, LUBA concluded that the “subject to the Planning Director’s discretion” language in the 2016 condition of approval authorized the planning director to review modification applications itself. Because LC 14.090(5)(c) allows approval of modifications by authorities other than those that approved the original decision if “the original decision allows modification by a different approval authority,” and because the 2016 condition of approval gave the planning director such authority, LUBA concluded that petitioner did not submit the wrong application type. In turn, because the LC did not authorize a hearings official to remand decisions to the planning director, LUBA concluded that the hearings official did not lack authority to review the application de novo. The second assignment of error was therefore sustained and the decision was REMANDED.