Lenhardt v. City of Newberg

Where a local government’s decision is supported with substantial evidence and complies with applicable regulations, LUBA will not reverse or remand under ORS 197.828(2).

The application at issue was a site design review for an eight-unit residential cottage cluster under Newberg Development Code (NDC) 15.05.030 on property zoned Institutional (I). The cottage cluster would be placed around a common courtyard in which would be a common building and laundry room. Each cottage would connect directly to the courtyard and would be from 270 square feet to 350 square feet in size, and would contain a bedroom, a bathroom, a kitchen, a living area, a porch, and a storage area.

Intervenors filed the application. Petitioners submitted two letters to the planning director (director) and argued that the proposed development fell into a residential care facility under NDC 15.05.030, which are subject to Type II procedures according to NDC 15.220.020(A)(2)(a) so the director must apply Type II procedures (the letters). The director emailed Petitioners and advised that design reviews for cottage clusters fall under Type I procedures according to NDC 15.100.020 so the director would process the application under Type I procedures (the email). Under Type I procedures, there is no public notice nor public hearing and only applicants are entitled to local appeal of a decision. The director determined that the application met the criteria for cottage clusters and approved the application (the decision).

Petitioners appealed the email to LUBA under 2023-021. Petitioners appealed the decision to LUBA under 2023-023.

LUBA determined that the decision was a limited land use decision under ORS 197.015(12)(a)(B). ORS 197.828(2) provides, in part, that LUBA must reverse or remand a limited land use decision if “[t]he decision is not supported by substantial evidence in the record[, but t]he existence of evidence in the record supporting a different decision shall not be grounds for reversal or remand if there is evidence in the record to support the final decision; or, [t]he decision does not comply with applicable provisions of the land use regulations."

In their first assignment of error, Petitioners argued that the director erred when they made the decision because it did not comply with applicable regulations and was not supported by evidence in the record. Specifically, Petitioners argued that the director was required to determine whether the application was for a residential care facility under NDC 15.05.030 but LUBA rejected that argument and reasoned that the director was permitted to rely on the application to support the decision. Petitioners also argued that the application was for a residential care facility based on wording from Intervenors’ website but LUBA rejected that argument and reasoned that the record did not support Petitioner’s argument. Petitioners further argued that the application did not meet the definition of cottage cluster under NDC 15.05.030 because the application was for transitionary housing and not a dwelling but LUBA rejected that argument and reasoned that the record did not support Petitioners’ argument. Accordingly, LUBA held that Petitioner’s first assignment of error was denied.

NDC 15.100.080(A) provides that “[t]he director shall determine the proper procedure for all development actions. If there is a question as to the appropriate type of procedure, the director shall resolve it in favor of the higher procedure type number.” In their second assignment of error, Petitioners argued that the director procedurally erred when they processed the application through Type I procedures, prejudicing Petitioners’ right to local appeal through Type II procedures. Specifically, Petitioners argued that the letters raised a question of appropriate procedure type under NDC 15.100.080(A) so the director should have used Type II procedures as the higher procedure type number. Intervenors argued that the director impliedly interpreted NDC 15.100.080(A) in their decision to mean, only when the director raised a question of appropriate procedure type, should the higher procedure type be used. LUBA determined that the director impliedly interpreted NDC 15.100.080(A) through the email and the decision to mean when the director raised a question of appropriate procedure type. LUBA reasoned that although NDC 15.100.080(A) was ambiguous as to who needed to raise the question because of the use of passive voice within the text, the context showed that it was the director who needed to raise the question of appropriate procedure type. LUBA determined that the director did not procedurally err when they processed the application through Type I procedures because the director did not raise a question of appropriate procedure type. Accordingly, LUBA held that Petitioner’s second assignment of error was denied.