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Regency Ctrs., L.P. v. Washington County

Court of Appeals of Oregon

August 20, 2014

REGENCY CENTERS, L.P., Petitioner below,
v.
WASHINGTON COUNTY, Respondent below. TAKFAL PROPERTIES, LLC, Respondent Cross-Petitioner,
v.
WASHINGTON COUNTY, Petitioner Cross-Respondent. MGP X PROPERTIES, LLC, Respondent Cross-Petitioner,
v.
WASHINGTON COUNTY, Petitioner Cross-Respondent

Argued and Submitted June 10, 2014

Page 857

Land Use Board of Appeals 2013091. Land Use Board of Appeals 2013093. Land Use Board of Appeals 2013094.

Affirmed on petition and cross-petitions.

Jacquilyn Saito-Moore, Senior Assistant County Counsel, argued the cause for Petitioner-Cross-Respondent. With her on the briefs was Office of Washington County Counsel.

Phillip E. Grillo argued the cause for respondent-cross-petitioner TakFal Properties, LLC. With him on the briefs was Davis Wright Tremaine LLP.

Ty K. Wyman argued the cause for respondent-cross-petitioner MGP X Properties, LLC. With him on the briefs were Brian R. Talcott and Dunn Carney Allen Higgins & Tongue LLP.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 858

[265 Or.App. 51] NAKAMOTO, J.

Washington County, TakFal Properties, LLC (Cinema), and MGP X Properties, LLC (Market Center) each seek judicial review of a final order of the Land Use Board of Appeals (LUBA).[1] In that order, LUBA remanded a county decision to remove a traffic signal located at the intersection of Tualatin Sherwood Road and the main entrances of Cinema's and Market Center's respective commercial properties, converting the access to those entrances to right-in, right-out only. On judicial review, the county asserts that LUBA improperly concluded that it had jurisdiction over the county's decision and erred in remanding to the county to determine whether its decision triggered the notice and hearing procedures under ORS 374.300 et seq. Cinema and Market Center argue in support of LUBA's order in those respects, but they assert in their respective cross-petitions that LUBA erred when it (1) concluded that the City of Sherwood's Traffic Control Master Plan did not require the traffic signal to remain at the location, (2) declined to address whether the county's decision was governed by OAR 660-012-0050(3) because deciding the issue could add nothing to LUBA's disposition on remand, and (3) declined to address whether the county's decision was a " permit" decision as defined in ORS 215.402(4) because petitioners had failed to adequately develop the argument for review. We affirm LUBA's order with respect to the county's assignments of error without discussion.[2] We write to address only [265 Or.App. 52] petitioners' cross-petitions. As to those, we review to determine whether LUBA's order was " unlawful in substance or procedure" under ORS 197.850(9)(a) and affirm.

I. BACKGROUND

Except as noted below, the parties do not challenge the background facts found by LUBA, so we take the following facts from LUBA's order:

" Petitioner [Cinema] owns the Sherwood Cinema Center located north of Tualatin Sherwood Road and east of Highway 99W in the City of Sherwood ([c]ity). Petitioner [Market Center] owns the Sherwood Market Center located south of Tualatin

Page 859

Sherwood Road and east of Highway 99W in the [c]ity. Where Cinema and Market Center make overlapping arguments in these consolidated appeals, we refer to them collectively as petitioners.
" Tualatin Sherwood Road is a facility that is owned, operated and maintained by the county. The portion of Tualatin Sherwood Road that is subject to the challenged decision is located entirely within the incorporated City of Sherwood. The four-way intersection of Tualatin Sherwood Road and [the driveways into petitioners' properties[3]] is located approximately 500 feet east of the intersection of Tualatin Sherwood Road and Highway 99W. A traffic signal at Tualatin Sherwood Road/[petitioners' driveways] intersection regulates traffic flow at the intersection and the intersection includes two left turn lanes from east bound Tualatin Sherwood Road north onto [Cinema's driveway] into Cinema's property. The traffic signal was installed sometime between 1995 and 1997 in order to satisfy a condition of approval of the [c]ity's 1994 decision approving Market Center's site plan. * * * The east bound left turn lanes from ...

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