Gould v. Deschutes County

Under ORS 197.797(1), an issue is preserved for review by LUBA if it has been “raised and accompanied by statements or evidence sufficient to afford [LUBA] and the parties an adequate opportunity to respond to each issue.” A petition for review to LUBA must demonstrate that the issue “was preserved during the proceedings below,” OAR 661-010-0030(4)(d), and LUBA will not search the record or large page ranges to find whether an issue was preserved. H2D2 Properties, LLC v. Deschutes County, __ Or. LUBA __, (LUBA No. 2019-066, Dec. 2019) (slip op at 7-9). However, because the purpose of ORS 197.797(1) is to provide the parties and the decisionmaker “an adequate opportunity to respond to each issue,” LUBA will not deny an assignment of error due to an insufficient preservation statement a) if the reply brief provides more focused citations to where an issue was raised, b) “where it is evident from the challenged decision itself that the issues raised” were “central” to the proceedings below, and c) if “the local government’s decision responds to those issues.” Nehmzow v. Deschutes County, __ Or. LUBA __, __ (LUBA No. 2019-110, Aug. 10, 2020) (slip op at 14-15).

Petitioner appealed the County’s approval of the site plan for an Overnight Lodging Unit (OLU) subdivision at a proposed Destination Resort. On appeal, Petitioner made only one assignment of error, that the County misapplied the law and failed to make adequate findings supported by substantial evidence in its decision to approve the site plan, in violation of the conditions of the Resort’s approved Final Master Plan. Petitioner’s preservation statement in their petition for review merely said that they had preserved the issue below, while the twelve subarguments provided record citations to where the single issue was preserved in twelve different contexts. In response, the Resort, as intervenor, claimed Petitioner’s preservation statement was inadequate to show when the issues had been preserved, and that the Resort’s substantial rights had been prejudiced because Petitioner cited almost 600 pages in the record, inhibiting the Resort’s ability to respond to the issues and present its position.

Under ORS 197.797(1), an issue is preserved for review by LUBA if it has been “raised and accompanied by statements or evidence sufficient to afford [LUBA] and the parties an adequate opportunity to respond to each issue.” A petition for review to LUBA must demonstrate that the issue “was preserved during the proceedings below,” OAR 661-010-0030(4)(d), and LUBA will not search the record or large page ranges to find whether an issue was preserved. H2D2 Properties, LLC v. Deschutes County, __ Or. LUBA __, (LUBA No. 2019-066, Dec. 2019) (slip op at 7-9). However, because the purpose of ORS 197.797(1) is to provide the parties and the decisionmaker “an adequate opportunity to respond to each issue,” LUBA will not deny an assignment of error due to an insufficient preservation statement a) if the reply brief provides more focused citations to where an issue was raised, b) “where it is evident from the challenged decision itself that the issues raised” were “central” to the proceedings below, and c) if “the local government’s decision responds to those issues.” Nehmzow v. Deschutes County, __ Or. LUBA __, __ (LUBA No. 2019-110, Aug. 10, 2020) (slip op at 14-15).

Regarding preservation, LUBA reasoned that, as the main purpose of ORS 197.797(1) is to provide notice to the parties, and because the Resort did not dispute that all but two of the issues had been raised below, Petitioner’s failure to conform their preservation statement to OAR 661-101-0030(4)(d) was a technical violation. LUBA concluded that the Resort’s substantial rights had not been prejudiced and it would not reject Petitioner’s entire assignment of error for a technical violation.

LUBA rejected two of Petitioner’s subarguments because they were not demonstrably raised below. On the merits, LUBA rejected Petitioner’s remaining subarguments for failing to bear the burden of proof on an issue, insufficiently developed arguments, or as derivative of arguments previously rejected in this and other decisions.

Affirmed.