Marquart v. City of Shaniko

Under ORS 227.178(2), if a local government does not provide adequate notice for its denial of an application, LUBA will remand.

Petitioner submitted to the City a site application for a single-family dwelling in the Residential zone. The City denied the application (the City’s decision). Petitioner appealed the City’s decision to LUBA.

The City’s first basis of denial was missing information in the application. ORS 227.178(2) provides that “If an application for a permit, limited land use decision or zone change is incomplete, the governing body or its designee shall notify the applicant in writing of exactly what information is missing within 30 days…” (emphasis added). Because the City failed to notify Petitioner “of exactly what information is missing”, LUBA determined this was an improper basis for denial because a single-family dwelling is an outright permitted use in the Residential zone and may be subject only to "clear and objective standards, conditions and procedures” under former ORS 197.307(4) (2022).

The City also denied Petitioner’s application because it was “not on our form,” citing City of Shaniko Zoning Ordinance (CSZO) 8.3. CSZO 8.3 provides that “all petitions, applications, and appeals provided for in this ordinance shall be made on the forms outlined in Appendix II of this Ordinance.” LUBA doubted that the City’s basis for denial under CSZ0 8.3 satisfied ORS 227.178(3). Further, LUBA reasoned that it is unclear from CSZO 8.3 what form is required. Furthermore, LUBA determined that the application not being on the City’s form is inadequate to tell Petitioner what information is missing.

Lastly, the City denied the application because the site plan had no setbacks on the plot/site plan. The Petitioner argued that the plan does depict setbacks, 10 feet from the street front and 10 feet from the side property line. LUBA agreed the setbacks were visible and therefore determined that this was an improper basis for denial under ORS 197.835(9)(a)(C).

Remanded.