Hinkle v. City of Bend

If an issue is brought up as “general opposition” to a proposal in the proceedings before the local government, and on appeal to LUBA the issue is raised while challenging the proposed action’s compliance with specific criteria or the operative language of a provision for the first time, LUBA will find the issue has not been raised with sufficient specificity and is waived under the “raise it or waive it” rule of ORS 197.835(3).

Petitioner appealed a city approval of a tentative subdivision plan along with waivers to allow for a reduced right-of-way and a reduced fire flow. Among other things, the subdivision application included a waiver for requirements of the right-of-way serving the subject property, including a reduction in width from sixty to forty feet and construction of planters, curbs, and sidewalks only on the applicant’s side of the road. Local code provided that a waiver may be granted if it was demonstrated “[t]here is insufficient right-of-way to allow a full width street cross-section and additional right-of-way cannot be provided.” The City reasoned the applicant could not be required to purchase land from neighboring property owners to meet the minimum width and approved the waiver.

On appeal, Petitioner made three assignments of error: 1) the application materials failed to consider the adoption of the middle housing statute which allowed up to four dwellings per lot rather than the assumed single dwelling per lot; 2) the application did not comply with the local code requirements for minimum width of a right-of-way and other improvements, and the City’s decision that those requirements could be waived was not supported by substantial evidence; and 3) the City misinterpreted the local code and did not consider whether allowing development with a minimum 500 gallons per minute (gpm) waterflow coupled with alternative construction methods “was harmful or beneficial to the public compared to allowing the development with 1,500 gpm” normally required by the local code.

The “raise it or waive it” rule, ORS 197.835(3), limits the issues on appeal to LUBA to those that were raised in the proceedings below and “statements and evidence sufficient to allow the government and parties to respond to it." Pliska v. Umatilla County, 240 Or. App. 238, 244, (2010), rev den, 350 Or. 408 (2011). “A particular issue must be identified in a manner detailed enough to give the decision-maker and the parties fair notice and an adequate opportunity to respond.” Boldt v. Clackamas County, 107 Or. App. 619, 623 (1991).

LUBA denied Petitioner’s first and third assignments of error, and the first subassignment of the second assignment of error because Petitioner had not raised the issues cited with sufficient specificity as required under the “raise it or waive it” rule. LUBA reasoned that while the record showed the issues had been raised as “general opposition” and concerns regarding the logistics and implementation of the plans in the proceedings below, none of those statements addressed the specific criteria or the operative language being raised before LUBA. LUBA found this did not qualify as raising an issue with sufficient specificity because the decision-makers and parties did not have fair notice or an adequate opportunity to respond to the issues raised in the appeal. LUBA concluded these issues were waived.

However, LUBA sustained Petitioner’s second subassignment of the second assignment of error, noting that the record did not show the City had addressed Petitioner’s issue of whether the road could be built entirely on the applicant’s property in order to provide the minimum width required for the right-of-way. While LUBA allowed there may be valid reasons for why the road could not be built entirely on the applicant’s property, none of those reasons had been addressed in the record. LUBA concluded there was not substantial evidence in the record to support the City’s decision that the road could not be built to the required minimum width.

Remanded.