Bergmann v. City of Brookings

1) Where a local government fails to make a final decision within 120 days, and where the applicant does not engage in mediation, LUBA will find that the application is not terminated pursuant to ORS 227.181(2)(b) because the intention of the legislature was to "close a loophole", not allow the local government to "sandbag" a remanded application through inaction. 2) When an issue was not raised with sufficient detail during local proceedings, LUBA will find that the issue was waived. ORS 197.797(1).

Petitioners appealed a city council decision on remand from LUBA, which approved a Conditional Use Permit (CUP) for the construction of a residential care facility. Approval of the CUP occurred 364 days after intervenors requested that the city begin the proceedings on remand. Petitioners presented an issue of first impression to LUBA.

Assignment of Error 1. 

Under ORS 227.181(1) a local government must take final action upon an application for a permit within 120 days, upon remand. Further, under ORS 227.181(2)(b) the 120 day period may be extended for up to an additional 365 days if the parties enter into mediation. If the matter is not resolved through mediation within the 365-day extension, "[t]he city shall deem the application terminated"

Petitioners argued that an application will automatically terminate 120 days after an application has been remanded from LUBA. The parties may enter into a mediation; however, if mediation has not been entered into with 120 days the application is terminated. The City argued that ORS 227.181 the petitioner's interpretation would allow cities to effectively deny an application by merely failing to take action. LUBA reasoned that based on the text and legislative history of the statutes, the 2015 amendments were enacted to address the fact that there was no deadline for a local government to act after LUBA remanded a decision. The purpose was to ensure on land use applications are acted upon following a successful appeal to LUBA. Accordingly, nothing in the statutory language requires automatic termination of application in process after the request to commence remand proceedings is made by an applicant.

The first assignment of error was denied. 

Assignment of Error 2. 

In order for an issue to be preserved, it must “be raised and accompanied by statements or evidence sufficient to afford the governing body… and the parties an adequate opportunity to respond to each issue.” ORS 197.797(1). Each particular issue must be identified in a manner detailed enough to give the governing body and the parties fair notice and an adequate opportunity to respond. Boldt v. Clackamas County, 107 Or App 619, 623 (1991). In their second assignment of error, petitioners argued that the city's approval of site design was not supported by substantial evidence because an accessible parking space located in the area that delivery vehicles would need to turn around. The city responded that the second assignment of error was not raised below and therefore waived. A review of the record found that petitioners only raised concerns about the width of the driveway, but made no mention of the accessible parking spaces as interfering with delivery vehicles maneuvering on-site. Accordingly, LUBA reasoned that because the issue was not raised with sufficient specificity, the issue was waived. 

The second assignment of error was denied. 

AFFIRMED