Nelson v. City of Hillsboro

Under ORS 174.010, errors in figures used for city planning are not within LUBA’s authority to correct. An assignment of error that collaterally attacks a city ordinance implicated in the decision on appeal provides no basis for LUBA to reverse or remand. Turner v. Jackson County, 62 Or. LUBA 199, 201 (2010), aff’d, 249 P.3d 564 (2011); Butte Conservancy v. City of Gresham, 47 Or. LUBA 282, 296, aff’d, 100 P.3d 218 (2004).

Petitioner appealed the City’s approval of plans to convert a bank drive-through canopy located in an alley into a covered dining patio. There was a discrepancy in the alley’s labeling between two versions of Hillsboro Community Development Code (CDC) Figure 12.6J.300-A (the Figure). The published version depicted a “potential alley,” whereas the enacted version showed no alley. The City found that the alley, as shown in either version, was not an “existing alley” under the CDC, and so did not require an alley dedication.

CDC 12.6L300(B) provides: “The Review Authority shall condition approval of developments in the Downtown Plan District adjacent to any existing or vacated alleys shown on Figure 12.6J.300-A to provide for future alley dedications or easements.”

In their first assignment of error, Petitioner argued the City’s decision “[did] not comply with applicable provisions of the land use regulations[,]" ORS 197.828(2)(b), because under CDC 12.6L300(B), the alley was an “existing alley” that existed on the ground and was “shown in Figure 12.6J.300-A.” LUBA, agreeing with the City, reasoned that under CDC 12.6L300(B) an alley must “exist” within the Figure and not simply “on the ground.” LUBA noted that even if Petitioner’s interpretation was correct, under either Figure version, the alley was at most “potential” alley, rather than an “existing” one.

Petitioner also argued that the Figure contained a scrivener's error because the alley “exists” on the ground. Under ORS 174.010, errors in figures used for city planning are not within LUBA’s authority to correct. LUBA reasoned that if the Figure contained an error, the only option was for the City to correct it by code amendment. LUBA denied Petitioner’s first assignment of error.

In their second assignment of error, Petitioner argued the City’s decision was not supported by substantial evidence, ORS 197.828(2)(a), because the Figure contained a “drafting error” inconsistent with the City’s comprehensive plan. An assignment of error that collaterally attacks a city ordinance implicated in the decision on appeal provides no basis for LUBA to reverse or remand. Turner v. Jackson County, 62 Or. LUBA 199, 201 (2010), aff’d, 249 P.3d 564 (2011); Butte Conservancy v. City of Gresham, 47 Or. LUBA 282, 296, aff’d, 100 P.3d 218 (2004). LUBA reasoned that because Petitioner challenged the Figure as erroneous, rather than the plans being appealed, it was a collateral attack on the ordinance that enacted the Figure and outside the scope of review of the appeal. LUBA denied Petitioner’s second assignment of error.

Affirmed.