Hurst et al. v. City of Rogue River

In 2016, the City approved Petitioners’ conditional use permit (CUP) and site design review (together, "the 2016 CUP") for a warehouse. In 2019, the city council concluded Petitioners failed to establish compliance with a number of the conditions of the 2016 CUP. Petitioners appealed the city council decision revoking the 2016 CUP to LUBA. 

Rogue River Municipal Code (RRMC) 8.05 provides enforcement procedures for nuisances. RRMC 17.100.110 provides the standards and criteria for the revocation of CUPs. In their first assignment of error, Petitioners argued the City committed a procedural error which prejudiced their substantial rights when it failed to follow procedures under RRMC 8.05, and instead moved to revoke the 2016 CUP under RRMC 17.100.110. The City responded, and LUBA agreed, that while following RRMC 8.05 may have been Petitioner's preferred course of action, they did not demonstrate that the City committed a procedural error in revoking the CUP pursuant to RRMC 17.100.110. The first assignment of error is denied. 

18.05 governs procedures for public hearings relating to CUPs. RRMC 18.05.050(A) provides that the burden of proof is on the proponent of the proposal, and, the more drastic the change or the greater the impact of the proposal, the greater the burden. In their second assignment of error, Petitioners argued the City committed a procedural error which prejudiced their substantial rights when it shifted the burden of proof of compliance to Petitioners and failed to place a heightened burden of proof of noncompliance on the City, as required by RRMC 18.05.050(A). LUBA noted the city council's decision referred to Petitioners as "applicant," though the City applied for the revocation. Accordingly, LUBA held that the city council committed a procedural error. Agreeing with Petitioners, LUBA held that, on remand, the city council should place a heightened burden of proof of noncompliance on the City. The second assignment of error is sustained. 

RRMC 18.05.050(B)(2) and (3) provide that a proposal must be supported by proof it serves a public need and there is no other land available to meet that need, or if there is, that need is nevertheless best served by the subject proposal. In their third assignment of error, Petitioners argued, pursuant to RRMC 18.05.050(B)(2) and (3), the city erred by failing to adopt findings demonstrating a public need served by the revocation of the 2016 CUP, or that the need was best served by the revocation. In response, the City invoked ORS 197.835(11)(B), which authorizes LUBA to overlook minor discrepancies or deficiencies in findings, arguing the public need for revocation "can be inferred" from evidence on the record. LUBA disagreed, holding that RRMC 18.05.050(B) is a "highly subjective standard," and accordingly, LUBA will not apply the "clearly supports" standard from ORS 197.835(11)(B), Waugh v. Coos County, 26 Or. LUBA, 300, 306-08 (1993), which is only appropriate where approval standards are objective. The third assignment of error is sustained. 

In their fourth assignment of error, Petitioners disputed the City's finding of noncompliance with the conditions of the 2016 CUP.

In several subassignments of error, Petitioners disputed the City's findings as to the "approval conditions” of the 2016 CUP, which were to be satisfied before commencement of warehouse operations. Petitioners assigned error to the City’s findings that they failed to comply with conditions as to lighting, fencing, and noise mitigation, arguing those findings were not supported by substantial evidence because the City previously found compliance with the conditions when it issued a building permit and approved site plans and mechanical plans stipulating the type and siting of noise-emitting equipment. A city may not collaterally attack the correctness of a prior decision by later ruling in the opposite. Safeway, Inc. v. City of North Bend, 47 Or. LUBA 489, 501 (2004). In its reply brief, the City raised for the first time the argument that the building permit was issued by a third-party contractor. LUBA will not consider legal theories raised for the first time in a response brief not adopted by the challenged decision. J Conser and Sons, LLC v. City of Millersburg, 73 Or LUBA 57, 62 (2016). Agreeing with Petitioners, LUBA noted that undisputed evidence in the record supported their position. Petitioners also assigned error to the City’s finding that they failed to comply with the condition that they submit a revised site plan showing off-street parking and loading facilities because delivery vehicles were larger than expected, and the condition that they submit water management and erosion control plans because they failed to maintain the site in accordance with the submitted plans. Petitioners argued that because the conditions only required them to submit plans, and not more, the City misconstrued them. Agreeing with Petitioners, LUBA noted that that it is undisputed that Petitioners submitted the required plans. Accordingly, LUBA held that substantial evidence did not provide a basis to conclude Petitioners had not complied with the approval conditions.

Petitioners further disputed the City’s findings as to the “operating conditions” of the 2016 CUP, which are Petitioners’ ongoing, post-approval obligations. Petitioners assigned error to the City’s finding that they failed to comply with the condition that they maintain certain hours of delivery because they used trucks larger than planned for, received more deliveries than allowed, and received deliveries outside of specified hours, as well as conditions related to the property’s declared use and onsite storage of materials. Petitioners argued, and LUBA agreed, the hours-of-delivery condition didn’t specify the size of truck permitted, nor did it limit the number of daily deliveries. Likewise, LUBA held the City misconstrued the declared use condition as requiring more than it did. Petitioners also argued, and LUBA agreed, that evidence relied on by the City to determine that deliveries were occurring outside of specified hours, as well as evidence relied on to establish violation of the material storage condition, was hearsay and vague. Reasoning that neither recounted statements made by unidentified persons nor undated photographs were evidence that a reasonable person would rely on, LUBA held that the City had not met its heightened burden of proof to establish noncompliance pursuant to RRMC 17.05.050(A). Petitioners also assigned error to the City’s finding that it failed to comply with ongoing, post-approval noise-mitigation requirements because their operations violated Department of Environmental Quality (DEQ) noise standards. Findings must address and respond to specific issues relevant to compliance with applicable approval standards that were raised in the proceedings below. Norvell v. Portland Area LGBC, 604 P2d 896 (1979). Agreeing with Petitioners, LUBA noted the City's findings did not explain why a violation of state noise standards was a basis to revoke the 2016 CUP, nor did they address the mitigation measures previously proposed and implemented by the Petitioners. Accordingly, LUBA held that the City's findings were inadequate. 

Finally, Petitioners disputed the City’s findings as to the general, or “catch-all,” conditions of the 2016 CUP. Petitioners assigned error to the City’s finding that they violated state and local standards regarding noise, vehicle maneuvering areas, and stormwater management, all in contravention of the condition that Petitioners comply with city, state, and federal requirements. Likewise, Petitioners assigned error to the City’s finding that they failed to comply with a condition restricting any use or process which will be harmful to persons living or working in the vicinity of the property and includes specific reference to noise and lighting. LUBA found the City’s findings as to Petitioners’ noncompliance with noise and lighting requirements to be derivative of its conclusions that Petitioners failed to comply with other conditions, and accordingly, LUBA held that those findings were likewise unsupported by substantial evidence. LUBA agreed with Petitioners that, because their supposed violation of local ordinance requiring vehicle maneuvering areas to be paved was a result of the City’s failure to timely process Petitioner’s application for paving, the City’s finding of noncompliance was not based on substantial evidence. LUBA also agreed with Petitioners that, because, in finding that the project’s storm water detention area did not meet city requirements, the city council incorrectly considered the record as of the date of the planning commission’s decision, rather than as of the date of its own decision, that finding was not supported by substantial evidence in the record.

The fourth assignment of error is sustained, and the City’s decision is remanded.