Kopacek v. City of Garibaldi

Intervenor applied for a conditional use permit for a multi-family residential development. After closing a public hearing, the city council voted on the application. One city councilor, who was new and had not reviewed the record, abstained and the city council denied the application. At a subsequent meeting, the mayor concluded that that city councilor was not allowed to abstain. The city council therefore re-voted on and approved the application. This appeal followed.

Under ORS 197.835(9)(a)(B), LUBA may remand a decision where the local government “[f]ailed to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights of the petitioner.” In the fourth assignment of error, petitioner argued that the city council committed procedural error by re-voting on the application. Specifically, petitioner argued that any objection to the city councilor’s abstention had to occur at the meeting at which the first vote was cast. Petitioner argued that their substantial rights were prejudiced because, had the city council not re-voted on the application, the application would have remained denied. The “substantial rights” of parties in land use proceedings include the rights to an adequate opportunity to prepare and submit their case and to a full and fair hearing. Because a party’s substantial rights do not include a right to a particular result, the fourth assignment of error was denied.

Under ORS 227.173(3), a decision approving or denying a permit application must “explain[] the criteria and the standards considered relevant to the decision, state[] the facts relied upon in rendering the decision and explain[] the justification for the decision based on the criteria, standards and facts set forth.” The city council’s decision recited evidence and argument, but it did not contain findings of fact or an identification of the relevant criteria. In the first assignment of error, petitioner argued that the city council’s decision violated ORS 227.173(3). Intervenor responded that the city council’s decision incorporated findings contained in the planning commission’s decision and a staff report. The city council’s decision described the planning commission proceedings and indicated the existence of a staff report. However, because the city council’s decision did not clearly indicate an intent to incorporate the staff report or the planning commission’s decision, LUBA agreed with petitioner that the city council’s findings were inadequate. The first assignment of error was therefore denied.

Under Garibaldi Municipal Code (GMC) 18.110.010(D), certain percentages of lot area must be devoted to natural open space or landscaping. In the second assignment of error, petitioner argued that the city council erred in concluding that intervenor’s application met that requirement. Under ORS 197.835(3), LUBA may review only issues that were “raised by any participant before the local hearings body.” Intervenor responded that, because compliance with GMC 18.110.010(D) was not raised below, petitioner could not raise that issue at LUBA. Petitioner replied that, because a city staff member and a planning commissioner discussed compliance with GMC 18.110.010(D) during the public hearing, that issue was not waived. Because decision-makers are not considered “participants” for purposes of ORS 197.835(3), and because, where only one point of view regarding an issue is raised by a participant below, an alternative point of view on that issue cannot be raised at LUBA, LUBA concluded that the discussion between the planning commissioner and the staff member, who indicated that GMC 18.110.010(D) was satisfied, was not sufficient to raise the issue of noncompliance with that provision for purposes of ORS 197.835(3). The issue was therefore waived, and the city’s decision was REMANDED.