Poppleton v. Wallowa County

Where a decision is issued after the close of record but an appealable issue was raised below, LUBA will not waive the issue. LUBA will not hold for a finding that is only supported by the record – a finding must be supported by standards for approval and relevant facts.

Applicants applied for, and the planning commission denied, a conditional use permit (CUP) for a bed and breakfast home-based occupation. Applicants appealed the denial to the county board of commissioners, who voted to reverse and issue the CUP. Petitioner appealed that decision.

Under their first and second assignments of error, Petitioner argued that the County insufficiently addressed “all structural and life safety requirements for the use and activity” (WCLDO 35.025.07) and “other conditions” (specifically fire hazards) (WCLDO 9.020.02), respectively, because the County’s findings were not supported by relevant facts and standards.

In response to both assignments of error, Respondent argued the matter was waived pursuant to ORS 97.797(1), which requires an appealable issue to be raised before the close of record, because the issues were not raised by the close of record for the planning commission (March 29, 2022). Agreeing with Petitioner, LUBA reasoned that Petitioner could not have raised the issues before the close of record because the planning commission’s decision was not issued until April 26, 2022, and the board of commissioners’ final decision was issued on September 21, 2022. Further, LUBA reasoned that Petitioner was not required to anticipate the findings, Lucier v. City of Medford, 26 Or. LUBA 213, 216 (1993), and Petitioner need not have personally raised an issue below for it to be preserved, so long as it was raised below, Santiam Water Control District v. City of Stayton, 54 Or. LUBA 561, 563 (2007). Accordingly, LUBA held that the issues were not waived.

Respondent also argued the record supported the findings. In making a quasi-judicial land use decision, a local government must support its findings adequately. Sunnyside Neighborhood v. Clackamas Co. Comm., 24 596 P.2d 1063 (1977); ORS 215.416(9). To do so, a local government must identify standards for approval and relied-upon facts, and its findings must be supported by the standards and facts relied upon. Heiller v. Josephine County, 23 Or. LUBA 551, 556 (1992). Agreeing with Petitioner, LUBA reasoned that the board of commissioners’ final decision did not cite specific facts or approval standards to support its findings for WCLDO 35.025.07 and WCLDO 9.020.02. Accordingly, LUBA held that the findings subject to Petitioner’s first and second assignments of error were inadequate.

Because the issues were not waived, and the County’s findings were inadequate, LUBA sustained Petitioner’s first and second assignments of error.

Under their third assignment of error, Petitioner argued that fire hazards from the proposed use (WCLDO 9.020.02) should have been addressed by the board of commissioners, and that the board needed to require conditions on the application. LUBA held that it is up to the board to identify conditions it finds appropriate after evaluating potential fire hazards from the proposed use.   

Remanded.