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Conte v. City of Eugene

Court of Appeals of Oregon

July 5, 2018

Paul CONTE and Bryn Thoms, Petitioners below,
v.
CITY OF EUGENE and Oakleigh Meadow Co-Housing, Respondents. and Rachel STEDMAN, Intervenor-Petitioner below, and Olive ROSSMAN, Petitioner,

          Argued and submitted April 12, 2018.

          Land Use Board of Appeals 2017063

          William K. Kabeiseman argued the cause for petitioner. Also on the briefs was Bateman Seidel Miner Blomgren Chellis & Gram, P.C.

          Lauren A. Sommers argued the cause and filed the brief for respondent City of Eugene.

          Zack P. Mittge argued the cause for respondent Oakleigh Meadow Co-Housing. Also on the brief were William H. Sherlock and Hutchinson Cox.

          Before DeVore, Presiding Judge, and Lagesen, Judge, and James, Judge. [*]

         [292 Or.App. 626] Case Summary: Petitioner seeks judicial review after the Land Use Board of Appeals (LUBA) denied her motion to intervene in an appeal of the City of Eugene's approval of a development application. LUBA ruled that petitioner had not "appeared" before the city during the proceedings on the application and therefore was not entitled to intervene before LUBA under ORS 197.830(7)(b) (limiting "[p]ersons who may intervene" to the applicant and "[p]ersons who appeared before the local government, special district or state agency, orally or in writing"). On judicial review, petitioner argues that she "appeared" in writing through a "Neighbor Report" submitted to the city in opposition to the application, which identified her as one of the neighbors who endorsed the recommendations in the report. Held: In order to have "appeared" within the meaning of ORS 197.830(7)(b), the person must have communicated to the local government, orally or in writing, in a manner that reasonably conveyed that person's desire to be treated as a party to the local government process. The Neighbor Report, which was not submitted or prepared by petitioner, did not reasonably convey that desire by merely including her as one of the residents of more than 50 listed residences who endorsed the report.

         Affirmed.

         [292 Or.App. 627] DEVORE, J.

         Petitioner seeks judicial review after the Land Use Board of Appeals (LUBA) denied her motion to intervene in an appeal of the City of Eugene's approval of a development application. LUBA ruled that petitioner had not "appeared" before the city during the proceedings on the application and therefore was not entitled to intervene before LUBA. See ORS 197.830(7)(b) (limiting "[p]ersons who may intervene" to the applicant and "[p]ersons who appeared before the local government, special district or state agency, orally or in writing"). On judicial review, petitioner argues that she "appeared" in writing through a "Neighbor Report" submitted to the city in opposition to the application, which identified her as one of the neighbors who endorsed the recommendations in the report. For the reasons that follow, we agree with LUBA's conclusion that being listed in the report as an endorser was not sufficient to "appear" before the local government as that term is used in ORS 197.830 (7)(b). Accordingly, we affirm LUBA's order.

         The dispute over the development application underlying this case has generated multiple LUBA and Court of Appeals decisions, but the background pertinent to the issue presented by this petition for judicial review is relatively straightforward.[1] We draw the general summary of that background from LUBA's final order:

"This is the third time the city has approved the Oakleigh Meadows [planned unit development (PUD)], and the third appeal to LUBA involving this application. In December 2013, the city planning commission tentatively approved a 29-unit PUD on the 2.3-acre subject parcel, with conditions of approval. The only access to the subject parcel is via Oakleigh Lane, an east/west street that runs west from River Road approximately 850 feet to dead-end near the subject property.
"The city's initial 2013 decision required intervenor-respondent Oakleigh Meadow Co-Housing (OMC) to dedicate right-of-way and improve the right-of-way adjacent [292 Or.App. 628] to the subject property, in part to provide a fire lane and turnaround; but the 2013 decision did not require OMC to improve any portion of Oakleigh Lane other than that immediately adjacent to the subject property. After an initial trip up and down the appellate ladder, in 2015 the planning commission re-opened the evidentiary record to accept additional testimony and evidence regarding the safety and adequacy of the (1) right-of-way width of Oakleigh Lane, (2) pavement width of Oakleigh Lane, and (3) parking on Oakleigh Lane. ***
"After a second trip up and down the appellate ladder to correct a new procedural error stemming from the 2015 proceeding, in 2017 the planning commission conducted new evidentiary proceedings limited to the same issues identified in the 2015 remand. At the conclusion of the 2017 remand proceedings, the planning commission adopted new findings and imposed a new condition of approval *** intended to ensure compliance with EC 9.8320(5), which requires that the PUD provide 'safe and adequate' transportation systems to connect to nearby areas."

(Footnotes omitted.)

         After the planning commission's most recent approval, two opponents of the PUD, Paul Conte and Bryn Thorns, initiated this latest appeal to LUBA. Petitioner, Olive Rossman, subsequently filed a motion to intervene in the appeal. The city objected to that motion, arguing that petitioner had been notified of the public hearing but had not thereafter "appeared" before the local government, making her ineligible to intervene under ORS 197.830(7).

         The parties' dispute over whether petitioner "appeared" before the city ultimately turned on the legal significance of a document entitled "Neighbor Report Recommending Denial of Land Use Applications PDT 13-0001 and WG 13-0001" (the Neighbor Report). That document, which was received by the city on October 9, 2013, had been created by, and represented the views of, multiple people. The first page of the report included the following recitals:

"Prepared by: Oakleigh and McClure Neighbors.
"Lead Authors-Bryn Thorns, John Fenn, Lara Bovilsky, Terrence Killian, Laura Regan.
[292 Or.App. 629] "Supporting Authors-Sandy Thorns, Shawn Johnson, Maj Hutchinson, Anne Love, Tammy Crafton, Cecelia Baxter-Heintz, Jill Bushelman, Rich Dambrov, Rachel Stedman, Scott Stedman, Jamil Jona, Kareen Fleener-Gould, Lisa Gilman."

(Boldface in original.) The report then states, "The following residents of the Oakleigh Area neighborhood endorse the recommendations of this document," followed by a list of more than 50 addresses on Oakleigh Lane and McClure Lane, as well as their occupants. Petitioner's name and address are on that list of residents who "endorse" the recommendations in the report.

         In petitioner's view, her endorsement of the report constituted an "appearance" before the city. The city disagreed, arguing that the report had actually been submitted by one of the lead authors, Bryn Thorns, and was predominantly prepared by him and other "lead authors." According to the city, there was no "assertion or evidence that [petitioner] authorized the authors to submit the Report on her behalf," and it "does not include any statement that Mr. Thorns or another author was serving as [petitioner's] representative" or ...


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