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Willamette Oaks, LLC v. City of Eugene

Court of Appeals of Oregon

January 24, 2019

WILLAMETTE OAKS, LLC, Petitioner,
v.
CITY OF EUGENE and Alexander Loop, LLC, Respondents.

          Argued and submitted October 12, 2018.

          Land Use Board of Appeals 2018035

          Frederick A. Batson argued the cause for petitioner. Also on the brief were Joshua K. Smith and Gleaves Swearingen LLP.

          Michael C. Robinson argued the cause for respondent Alexander Loop, LLC. Also on the brief were Andrew J. Lee and Schwabe, Williamson & Wyatt, P.C.

          Lauren A. Sommers waived appearance for respondent City of Eugene.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Petitioner seeks judicial review of an opinion and order of the Land Use Board of Appeals affirming the City of Eugene's decision that the final phase of the Goodpasture Island Planned Unit Development complies with a condition of approval (Condition 3). On review, petitioner raises two assignments of error: first, that LUBA erred in finding that Condition 3 was satisfied, because its interpretation of Condition 3 is inconsistent with prior LUBA and Court of Appeals decisions and, therefore, violates the law of the case doctrine; and, second, that, under a correct interpretation of Condition 3, LUBA erred in concluding that there was substantial evidence in the record to support a determination that the proposed development would satisfy Condition 3. Held: Petitioner did not preserve for review the issue of whether the law of the case doctrine precluded the city's and LUBA's interpretation of Condition 3. Accordingly, the Court of Appeals did not address petitioner's first assignment of error. The court rejected petitioner's second assignment of error because it was premised on the correctness of its first assignment of error.

         [295 Or. 758] TOOKEY, J.

         Petitioner Willamette Oaks, LLC (Willamette), seeks judicial review of an opinion and order of the Land Use Board of Appeals (LUBA), in which LUBA affirmed a decision by the City of Eugene that the final phase of the Goodpasture Island Planned Unit Development (PUD) complies with a PUD condition of approval. Specifically, the city determined, and LUBA concurred, that the proposed development of Phase 5 of the PUD satisfied Condition 3, which imposed a "trip cap," limiting vehicle trips generated by the PUD to a specified number of trips during the a.m. and p.m. peak hours, as determined by the Institute of Transportation Engineers Trip Generation Manual (ITE Manual). Willamette raises two assignments of error on review.

         First, Willamette contends that LUBA erred in affirming the city's decision because its interpretation of Condition 3 is contrary to prior LUBA and Court of Appeals decisions, in violation of "law of the case." Respondent Alexander Loop, LLC (Goodpasture), [1] responds that Willamette failed to preserve that argument, and, in any event, it fails on its merits. As explained below, we agree with Goodpasture that Willamette's first assignment of error is unpreserved, and, therefore, we do not reach the merits. See ORAP 5.45(1) (except for discretionary plain error review, "[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court"). Second, Willamette contends that, if calculated according to the "correct" ITE Manual codes, LUBA erred in concluding that substantial evidence supports the city's determination that Phase 5 of the PUD satisfies Condition 3. Because that assignment of error necessarily depends on the correctness of its first assignment, which we do not address, we also reject Willamette's second assignment of error. Accordingly, we affirm.

         The Goodpasture Island PUD is a multifamily/ mixed-use development encompassing five phases, four of [295 Or. 759] which have been built. The development has a long and complicated history, and it has been the subject of extensive litigation over nearly a decade. For context, we recite the historical facts relevant to the present dispute-which are uncontested-from LUBA's opinion and order:

"Condition 3[2] was originally imposed in 2010, as part of a decision approving the rezoning of the subject property, to facilitate approval of a proposed PUD for a large multi-family/mixed use development, in five phases. To establish that the rezoning was consistent with the Transportation Planning Rule (TPR), at OAR 660-012-0060, the applicant proposed a 'trip cap' limiting the number of vehicle trips the PUD could generate during peak hours. The trip cap was designed to keep PUD traffic generation at or below what the subject property could have generated under the previous zoning, in order to avoid mitigation and other obligations the TPR would otherwise require. The trip cap numbers were based on a 2009 traffic impact analysis (2009 TIA), which used three codes from the 7th edition of the ITE Manual to estimate the number of trips the PUD would generate on full build-out, assuming a particular mix of three types of uses categorized under the ITE Manual: code 220 (Apartments), code 252 (Senior Adult Housing), and code 814 (Specialty Commercial).
"In 2011, the applicant applied to the city for final PUD approval and submitted a second TIA to demonstrate that the proposed 5-phase development would comply with Condition 3. However, the 2009 [sic] TIA used ITE Manual code 223 (Mid-Rise Apartments) instead of code 220 (Apartments) to estimate trips generated by the unrestricted apartments proposed in several phases. The 2011 hearings officer rejected this approach, concluding that one of the purposes of Condition 3 was to 'establish a baseline by which to compare traffic impacts of future changes of use.' Accordingly, the 2011 hearings officer amended the first sentence of Condition 3 to specify that the trip cap must be determined 'using code 220-Apartments for all unrestricted residential apartments on the development site.'
"The 2009 TIA and the 2010 tentative PUD approval assumed construction of 125 senior adult housing units in [295 Or. 760] Phase 4. In the 2011 proceeding, the applicant instead proposed Phase 4 construction to include a mix of 22 senior adult housing units and 132 units (beds) of assisted living, [the latter of] which is represented by a different ITE Manual code, code 254 (Assisted Living) and which is a code category that generates more traffic than code 252 (Senior Adult Housing).[3] Apparently because of this change in the type of restricted residential uses, the hearings officer also amended Condition 3 to require that prior to construction of the final phase, Phase 5, the applicant conduct a current traffic study that counts the actual number of trips generated by the constructed phases 1-4, to determine if additional analysis or mitigation may be required under the TPR prior to construction of Phase 5. With that amendment, the 2011 hearings ...

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