and submitted July 25, 2017.
Use Board of Appeals 2016104
Michael Connors argued the cause for petitioner. With him on
the brief was Hathaway Koback Connors LLP.
Kloos argued the cause for respondent Valley Hospitality,
LLC. With him on the brief was Law Offce of Bill Kloos, PC.
N. Jerome waived appearance for respondent City of Eugene.
Egan, Presiding Judge, and DeHoog, Judge, and James, Judge.
Summary: Petitioner seeks review of a final order of the Land
Use Board of Appeals (LUBA) that remands to the City of
Eugene (the city) its decision approving a site plan for a
hotel that Valley Hospitality LLC (Valley) proposed to build.
Petitioner contends that LUBA erred when it failed to reverse
the city planning commission's decision and, instead,
remanded the decision to the city. Petitioner also asserts
that LUBA erred in concluding that Valley had adequately
preserved before the hearings officer an argument regarding
storm water quality standards. Held: LUBA did not
err in remanding the case to the city, nor did LUBA err in
concluding that Valley adequately preserved its argument
relating to storm water quality management standards before
the hearings officer.
Or.App. 321] EGAN, P. J.
seeks review of a final order of the Land Use Board of
Appeals (LUBA) that remands to the City of Eugene (the city)
its decision approving a site plan for a hotel. Petitioner
raises three assignments of error. We reject petitioner's
third assignment of error without discussion and write to
address only the first and second assignments of error. On
review to determine whether LUBA's order is
"unlawful in substance, " ORS 197.850(9)(a), we
case relates to the city planning commission's approval
of a site plan for the construction of a hotel near Valley
River Center in Eugene. The relevant facts are primarily
procedural. Valley Hospitality LLC (Valley) applied for site
plan review and other approvals to construct the proposed
101-room hotel on its property. That property is 2.2 acres in
size, and is located adjacent to petitioner's property.
After holding a hearing on the application, a hearings
officer denied it. Valley appealed to the city planning
commission, which held a hearing and then approved the
application. Petitioner then appealed to LUBA which rejected
a number of petitioner's arguments but sustained one
assignment of error and remanded the case to the city.
review, in its first assignment of error, petitioner contends
that LUBA erred when it failed to reverse the planning
commission's decision and, instead, remanded the decision
to the city. Our consideration of that issue requires some
additional discussion of the proceedings before the city and
petitioner's assignments of error before LUBA related to
the street tree planting requirements under Eugene Code (EC)
7.280(1), which provides:
"In order to create attractive and healthy neighborhood
environments, no approval shall be granted for a development
that involves the creation of a street unless the applicant
has submitted and received approval of a street tree plan
that ensures street trees will be planted and established in
accordance with the standards and procedures provided for in
this section and the adopted policies of the Urban Forest
Management Plan. Street trees shall be planted in accordance
with the approved street tree plan [288 Or.App. 322] as each
lot or area is developed, and shall be required on streets
that abut the development as well as on new streets within
the development site."
the proceedings before the hearings officer Valley argued
that, because its application did not propose the
"creation of a street, " EC 7.280 did not apply to
the application. The hearings officer disagreed with Valley
and, instead, concluded that existing streets were subject to
the street tree standards of EC 7.280. That is, contrary to
Valley's contention, the hearings officer concluded that
EC 7.280 applied to the application. Furthermore, the
hearings officer determined that Valley had not satisfied the
requirements of EC 7.280. Valley appealed the hearings
officer's decision to the planning commission. On appeal,
the planning commission concluded that, contrary to the
hearings officer's decision, because the application did
not propose the creation of new streets, EC 7.280 did not
apply to Valley's application. As noted, the planning
commission approved Valley's application.
LUBA, petitioner argued that the planning commission had
exceeded its authority under EC 9.7655(3). Under that
provision, which governs appeals of a hearings officer's
decision to the planning commission, the "appeal shall
include a statement of issues on appeal, be based on the
record, and be limited to the issues raised in the record
that are set out in the filed statement of issues."
(Emphasis added.) Thus, generally, for an issue to be
properly before the planning commission on appeal from the
decision of a hearings officer, the issue must have been
raised in the filed statement of issues.
agreed with petitioner that the planning commission had
exceeded its authority when it decided that the hearings
officer erred in concluding that EC 7.280 applied. In its
order, LUBA explained that, with respect to the street tree
planting standards, Valley took the position in its filed
statement of issues that the requirements of EC 7.280 were
satisfied or could be satisfied through a condition of
approval; Valley did not, however, argue to the planning
commission that EC 7.280 did not apply. Accordingly, LUBA
agreed with petitioner that the planning commission
improperly considered an issue-whether EC 7.280 applied [288
Or.App. 323] at all-that was not raised in the statement of
issues and sustained petitioner's assignment of
error. In light of that conclusion, LUBA
explained that, on remand, "the planning commission must
determine whether, consistent with [Valley's] filed
appeal statement that took the position that evidence in the
record demonstrates that EC 7.280 is met, the hearings
officer erred in determining that there is not sufficient
evidence in the record to demonstrate that EC 7.280 is
met." In other words, with respect to the street tree
planting standards, LUBA remanded for the planning commission
to consider the issue that Valley had actually raised in its
filed statement of issues.
noted, on review, petitioner contends that, in light of its
conclusion that the planning commission had exceeded its
authority under EC 9.7655(3) by considering an issue that was
not raised by Valley in its filed statement of issues, LUBA
was required to reverse (rather than remand) the planning
commission's decision approving Valley's application.
The appropriate disposition of the city's land use