Vanderburg v. City of Albany

On appeal to LUBA, a petitioner must establish that a particular issue was raised in the proceedings below. If a petitioner fails to do so, LUBA will hold that the issue has been waived or that there is insufficient information for LUBA to adequately review the local government’s decision.

Petitioner appealed a city ordinance vacating part of a public right-of-way (ROW). Under the ordinance, twenty feet on either side of the ROW became part of the two adjoining properties, Petitioner’s property and a property operated as a homeless shelter, while the City retained a public access easement in the middle twenty-six feet. On appeal to LUBA, Petitioner made three assignments error: 1) the vacation would impede parking access to Petitioner’s property in violation of a city code provision requiring no “negative effect on access,” 2) the shelter might not be able to maintain the vacation and easement in compliance with city code, and 3) the vacation made the street private, complicating resolution of trespassing issues.

“Findings must (1) identify the applicable standards, (2) set out the facts relied upon, and (3) explain how those facts lead to the conclusion that the standards are met.” Heiller v. Josephine County, 23 Or. LUBA 551, 556 (1992). “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, 43 Or. App. 849, 853 (1979). “A finding of fact is supported by substantial evidence if the record, viewed as a whole, would permit a reasonable person to make that finding.” Younger v. City of Portland, 305 Or. 346, 360 (1988).

LUBA denied Petitioner’s first and third assignments of error, citing Petitioner’s failure to raise the specific factual allegations before the City regarding their parking and trespass concerns. As Petitioner had not raised these issues, the City was unable develop findings addressing them under Norvell, which hindered LUBA’s ability to review the City’s decision. However, under the first assignment, LUBA reasoned that, because nothing in the record indicated Petitioner’s parking access would be impeded, a reasonable person could conclude there would be no negative impact from the decision. Under the second assignment, LUBA found Petitioner would gain the legal right to remove people from their new private property, and that if an issue occurred in the public easement, the City’s police department had jurisdiction to intervene if Petitioner called them. LUBA concluded the City’s decision was supported by substantial evidence.

Issues before LUBA "shall be limited to those raised by any participant before the local hearings body as provided by ORS 197.195 or 197.797, whichever is applicable." ORS 197.835(3). The issue must "be raised and accompanied by statements or evidence sufficient to afford the governing body, planning commission, hearings body or hearings officer, and the parties an adequate opportunity to respond to each issue." ORS 197.797(1).

LUBA denied the second assignment of error as waived because Petitioner had failed to raise it below, and, even if it were not waived, Petitioner’s argument that the shelter may not have the resources in the future to maintain the property provided no basis for remand.

Affirmed.