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Rockbridge Capital v. City of Eugene

Court of Appeals of Oregon

October 18, 2017

ROCKBRIDGE CAPITAL, Petitioner,
v.
CITY OF EUGENE and Valley Hospitality, LLC, Respondents.

          Argued and submitted July 25, 2017.

         Land Use Board of Appeals 2016104

          E. Michael Connors argued the cause for petitioner. With him on the brief was Hathaway Koback Connors LLP.

          Bill Kloos argued the cause for respondent Valley Hospitality, LLC. With him on the brief was Law Offce of Bill Kloos, PC.

          Emily N. Jerome waived appearance for respondent City of Eugene.

          Before Egan, Presiding Judge, and DeHoog, Judge, and James, Judge.

         Affirmed.

         Case 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.

         [288 Or.App. 321] EGAN, P. J.

         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. 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 affirm.

         This 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.

         On 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 LUBA.

         Two of 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."

         During 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.

         Before 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.

         LUBA 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.[1] 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.

         As 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 ...


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