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Southcentral Ass'n of Neighbors v. City of Salem

Court of Appeals of Oregon

July 15, 2015

SOUTHCENTRAL ASSOCIATION OF NEIGHBORS, Petitioner below Cross-Respondent, and Curt FISHER and Jon Christenson, Intervenors below, and Timothy COWAN, Petitioner Cross-Respondent,
CITY OF SALEM, Respondent, and SALEM HOSPITAL, Intervenor-Respondent Cross-Petitioner

Submitted May 1, 2015

Land Use Board of Appeals. 2014083.

Timothy Cowan filed the briefs, Pro se.

Keith J. Bauer, Michael J. Walker, and Parks Bauer Sime Winkler & Fernety LLP, filed the brief for respondent-cross-petitioner.

Kevin J. Jacoby, Tyler P. Malstrom, and Connolly & Malstrom, filed the brief for cross-respondent Southcentral Association of Neighbors.

No appearance for respondent City of Salem.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.


Page 209

[272 Or.App. 294] HADLOCK, J.

Salem Hospital applied to the City of Salem for site plan review and a variance from a provision of the Salem Revised Code (SRC) for development of a property (the Church Street property) that the hospital owns adjacent to the existing hospital. It proposed to build a medical rehabilitation center and hospitality house, parking to serve those uses, and additional parking to serve the hospital. After a hearings officer approved the site plan review and the variance, Southcentral Association of Neighbors (SCAN) appealed to the Land Use Board of Appeals (LUBA), contending that the hearings officer had misinterpreted the relevant provisions of the SRC. LUBA agreed with SCAN and intervenors Fisher and Christenson (collectively, Fisher intervenors) that the hearings officer " [had] not established that [the proposed number of] parking spaces may be allowed on the property consistent with all applicable code requirements." Accordingly, LUBA remanded the decision to the city.

Intervenor Timothy Cowan petitions for judicial review of LUBA's decision.[1] We reject

Page 210

Cowan's arguments without discussion because they essentially ask us to act as decision makers in the first instance, rather than identifying and addressing purported errors in LUBA's factual findings or legal reasoning. The hospital cross-petitions for judicial review, contending that LUBA erred in reversing the hearings officer's order. Because the hospital has not demonstrated any error in LUBA's decision, we affirm.

We may reverse or remand LUBA's order if it is " unlawful in substance or procedure." ORS 197.850(9)(a); Pliska v. Umatilla County, 240 Or.App. 238, 243, 246 P.3d 1146 (2010), rev den, 350 Or. 408, 256 P.3d 121 (2011). " [E]rror in procedure is not cause for reversal or remand unless the court finds that substantial rights of the petitioner were prejudiced thereby." ORS 197.850(9)(a).

The parties agree that the city's approval of the site plan review and variance is a limited land use decision. ORS 197.015(10)(b)(C). Accordingly, here, LUBA's task was [272 Or.App. 295] to determine whether the hearings officer's decision " [did] not comply with applicable provisions of the land use regulations." ORS 197.828(2)(b). In making that determination, LUBA does not defer to the hearings officer's interpretation of the local ordinance. Gage v. City of Portland, 319 Or. 308, 317, 877 P.2d 1187 (1994).

As framed in the cross-petition, the parties' dispute turns on whether LUBA correctly concluded that various SRC provisions support the conclusion that the Church Street property is a " lot" that is separate from the site of the hospital. SRC 133.050(a). We begin by setting out the most relevant provisions of the SRC, which provide background for the procedural history and the parties' arguments.[2]

Read together, SRC 133.050 and 133.100 specify the minimum and maximum numbers of off-street parking spaces to be associated with a particular use and where that parking generally must be located. SRC 133.050 provides:

" (a) Off-street parking and loading areas shall be provided on the same lot with the main building or use except that:
" * * * *
" (2) In any [district other than a residential district], except the CB and SWMU districts [(which are not at issue here)], the parking area may be located off the site of the main building or use if it is within 500 feet of such site.
" * * * *
" (b) Off-street parking is incidental to the use which it serves. As such, it shall be located in a zoning district appropriate to that use, or where a public parking ...

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