Haugen v. City of Scappoose

Under ORS 197.797(9)(b), "evidence" is defined as facts, documents, or other information used to demonstrate compliance or noncompliance with relevant standards. Approval criteria for planned developments require the proposal to align with the comprehensive land use plan and be compatible with the surrounding area. Conditional use permits consider the site's suitability based on size, location, and natural features. Information on engineering issues, lot size feasibility, and project amenities relates to these criteria and is considered evidence.

Petitioner appealed a city council decision approving a planned development overlay zone designation, a conditional use permit, a tentative subdivision plat, and a sensitive lands development permit required to subdivide the subject property and develop numerous single-family residential lot. This case is on remand from the Court of Appeals, where they reversed and remanded LUBA’s decision with respect to the second and third assignments of error.

On the second assignment of error, the petitioner argued that the city council erred in not allowing petitioner to respond to intervenor’s statements. The petitioner argued that certain statements made by the intervenor regarding engineering issues, lot sizes, and the inability to provide project amenities with larger lots were new evidence. The Court of Appeals ruled that LUBA erred in rejecting this argument, stating that the intervenor’s information presented to the city council after reopening the record qualified as "evidence" under ORS 197.797(9)(b). The petitioner had identified specific concerns regarding density, lot sizes, and the floodplain, but LUBA had ruled that they did not sufficiently connect the intervenor's information to the approval criteria. The Court of Appeals reversed this decision, concluding that the information was indeed new evidence, which should have been addressed by the petitioner. Here, the board stated that, under ORS 197.797(9)(b), "evidence" is defined as facts, documents, or other information used to demonstrate compliance or noncompliance with relevant standards. Approval criteria for planned developments require the proposal to align with the comprehensive land use plan and be compatible with the surrounding area. Conditional use permits consider the site's suitability based on size, location, and natural features. Information on engineering issues, lot size feasibility, and project amenities relates to these criteria and is considered evidence. The second assignment of error was sustained, as the intervenor's submissions were deemed evidence.

The third assignment of error looks at the city council’s adoption as findings, a staff report addressing the compliance of a 48-lot development with the applicable approval criteria. They then conditioned the approval on the total lot number being 44. The petitioner argued that the city council did not provide specific findings regarding the revised 44-lot plan, failing to clarify how it addressed the council's concerns or complied with the applicable criteria. The petitioner claimed the council's conclusion that the revised plan met approval standards could not be affirmed without these findings. However, the court agreed with the respondents that the city adopted findings, supported by substantial evidence, that a 48-lot project met the approval criteria. Additionally, since the petitioner did not identify specific criteria requiring the 44-lot condition, further findings were deemed unnecessary.

Furthermore, the petitioner believed that despite the council's ordinance approving a 48-lot project with conditions limiting the number and size of lots, the council should be understood to have approved only a 44-lot project. The Court found that LUBA did not adequately explain why the petitioner’s interpretation was incorrect, failing to address the facts supporting the petitioner's argument. As a result, LUBA misapplied its standard of review. The Court noted that while the city council imposed a 44-lot condition, its final written decision approved a 48-lot development. However, the final decision must be based on substantial evidence, which was lacking because the petitioner was not given the opportunity to respond to the intervenor's new evidence. Since this unchallenged evidence was not substantial, the findings were inadequate. The Court sustained the third assignment of error and remanded the city's decision for further review.