City of Roseburg v. Douglas County

Where a local government does not adequately explain its approval or denial of a land use decision (ORS 215.416(9); Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or 3, 21 (1977)), LUBA will remand. Under LUDO 2.120(1)(a), the standard of review is a preponderance of the evidence. When a petitioner assigns error after failing to object to a procedural error below when it had the opportunity to do so, LUBA will deny the assignment of error. Torgeson v. City of Canby, 19 Or LUBA 511, 519 (1990); Dobaj v. City of Beaverton, 1 Or LUBA 237, 241 (1980). When a petitioner assigns error to statements made by the local government below instead of to the final written decision, LUBA will deny the assignment of error. Gray v. Clatsop County, 22 Or LUBA 270, 293 (1991); Gruber v. Lincoln County, 16 Or LUBA 456, 460 (1988); Bruck v. Clackamas County, 15 Or LUBA 540, 542 (1987); Oatfield Ridge Residents Rights v. Clackamas County, 14 Or LUBA 766, 768-69 (1986); Citadel Corporation v. Tillamook County, 9 Or LUBA 61, 67 (1983).

At issue is the City’s application for a conditional use permit (CUP) to develop a multi-use recreational trail system in a City-owned and operated property, Sunshine Park, zoned Exclusive Farm Use-Grazing (the application). The property was located outside city limits with the developed portion of the property within the urban growth boundary (UGB) and the undeveloped portion of the property outside the UGB.

After holding hearings on the application, the planning commission conditionally approved the application, incorporating by reference a staff report and a supplemental staff report. On appeal and after an on-the-record hearing, the board of commissioners voted to reverse the planning commission’s decision and deny the application (the decision), supporting the decision with its own brief findings. The City appealed the decision to LUBA.

ORS 215.416(9) provides that “[a]pproval or denial of a permit or expedited land division shall be based upon and accompanied by a brief statement that explains the criteria and standards considered relevant to the decision, states the facts relied upon in rendering the decision and explains the justification for the decision based on the criteria, standards and facts set forth.” For a local government’s findings to be adequate, it must give a clear statement of the specific relevant and important facts relied upon in its decision after hearing and considering all evidence; the local government must give more than a conclusion. Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or 3, 21 (1977).

In its first assignment of error, the City argued that the County erred when it found that the application failed Douglas County Land Use and Development Ordinance (LUDO) 3.39.050(1) (an applicant must show that “[t]he proposed use is or may be made compatible with existing adjacent permitted uses and other uses permitted in the underlying zone”) because the County’s findings were inadequate. Specifically, the City argued that the planning commission’s findings – that the proposed use may be compatible with adjacent and allowed uses within the zone – were adequate and the board of commissioners failed to adequately support its own findings with facts and justifications. In a finding of noncompliance, a local government must adequately explain why applicable criteria are not met and must sufficiently inform the applicant if it is unlikely that the application will be approved or of the steps necessary to obtain approval. Salem-Keizer School Dist. 24-J, 27 Or LUBA at 371; Eddings v. Columbia County, 36 Or LUBA 159, 162 (1999). LUBA reasoned that the board of commissioner’s findings were inadequate because it did not explain why the proposed use was not or would not be compatible with existing or permitted uses in the zone. Accordingly, LUBA held that the City’s first assignment of error was sustained.

ORS 197.835(9)(a)(B) provides that LUBA must reverse or remand a local government’s decision if that local government “[f|ailed to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights of the petitioner”. A petitioner’s substantial rights that can be prejudiced by a local government’s failure to observe applicable procedures are the rights to an adequate opportunity to prepare and submit their case, and a full and fair hearing. Muller v. Polk County, 16 Or LUBA 771, 775 (1988). A petitioner must identify the procedure allegedly violated to establish a procedural error. Stoloff v. City of Portland, 51 Or LUBA 560, 563 (2006).

LUDO 2.120(1)(a) provides that the applicant holds the burden of proof to establish that the proposed action complies with applicable LUDO criteria but does not establish a standard of proof. In its second assignment of error, the City argued that the County erred when it applied a higher standard of proof in the decision – concluding the application lacked conclusive information – because it prejudiced the City’s substantial right to a full and fair hearing. The County and Intervenor argued that the decision’s standard of proof was not greater than a preponderance of the evidence and the use of “conclusive information” must be read in context with the other findings. LUBA determined that the standard of proof under LUDO 2.120(1)(a) is a preponderance of the evidence. LUBA reasoned that the decision’s standard of proof was not higher than a preponderance of the evidence because the decision found the City’s evidence did not show the applicable LUDO criteria were met. Accordingly, LUBA held that the City’s second assignment of error was denied.

LUDO 2.700(3)(h) provides that only rebuttal arguments are allowed during on-the-record hearings. In its third assignment of error, the City argued that the County erred when it accepted new evidence from application opponents and a commissioner in the board of commissioners’ on-the-record hearing because it prejudiced the City’s substantial right to respond to new evidence. The City further argued that it could not object to the procedural error before the board of commissioners because the error occurred after the record was closed and the City discovered it in the decision. Intervenor argued that the City failed to object to the procedural error in the hearing and therefore could not appeal it to LUBA. A party cannot assign as grounds for reversal or remand a procedural error when that party had the opportunity to object to that procedural error before a local government but failed to do so. Torgeson v. City of Canby, 19 Or LUBA 511, 519 (1990); Dobaj v. City of Beaverton, 1 Or LUBA 237, 241 (1980). LUBA determined that the evidence objected to by the City, except the commissioner’s statements during deliberation, was presented before the close of the record and LUBA further determined that the City did not show why it could not object to the evidence before the close of the record. Even if the issue was not waived, LUBA reasoned that the evidence was not new evidence because the evidence was presented before the planning commission. Accordingly, LUBA held that the City’s third assignment of error was denied.

LUDO 2.700(2) provides, in part, that “[r]eview by the [board of commissioners] shall be a de novo review of the record limited to the grounds relied upon in the notice of review”. In its fourth assignment of error, the City argued that the County erred when it made the decision based on an issue not raised in the notice of review because, in the hearing, a commissioner discussed how the City failed to fully annex the property into the city limits since acquiring ownership of the property. On appeal, LUBA reviews the final written decision not what individual decisionmakers state during proceedings below. Gray v. Clatsop County, 22 Or LUBA 270, 293 (1991); Gruber v. Lincoln County, 16 Or LUBA 456, 460 (1988); Bruck v. Clackamas County, 15 Or LUBA 540, 542 (1987); Oatfield Ridge Residents Rights v. Clackamas County, 14 Or LUBA 766, 768-69 (1986); Citadel Corporation v. Tillamook County, 9 Or LUBA 61, 67 (1983). LUBA reasoned that the City did not provide a basis for reversal or denial because the City assigns error to a commissioner’s statements in proceedings below and not to the decision. Accordingly, LUBA held that the City’s fourth assignment of error was denied.