Oral Argument 2025-088 JIPR, LLC v. City of Carlton
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=O4Kk_c4Y1Zw). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Good morning. This is the time set for oral argument in luba number 2025-088 JIPR LLC versus the city of Carlton. I'm board chairs Moodio. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking. That will help with the recording. And uh in this matter we have a motion to take evidence and a motion to strike that are pending. We will resolve those in our final decision. And petitioners or petitioner, you have a total of 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> Yes, I'd like to reserve at least four minutes. Um but I guess if I am able to start stop my initial remarks earlier, then I would up take up to five minutes. >> Okay. So, uh, you want to reserve 5 minutes and then you might go into that rebuttal time. Is that what I understand? Okay, sounds good. I will keep track of time here and also ask that you keep track on your own. The clock that's on the screen is just for general reference. It's not keeping exact time. And respondent and interviewer, you have a total of 15 minutes. Have you discussed how you'll share your time? >> Yes. uh we'll be splitting our time evenly, but we'll be each arguing uh each other's arguments uh essentially. So, if that makes sense. >> Okay. I'm sure it will as we proceed. Uh again, I'll ask you to keep track of your own time and I will look uh here as well. And so, with that, petitioner, please state your name for the record to begin. Uh, chair, members of the board, my name is Nick Roen and I have the honor of representing the petitioner JAPR LLC, um, who is the applicant below, uh, who, as you know, applied to develop a convenience store and fuel station and those land use applications were denied by the city of Carlton, which resulted in us filing the subject appeal. So, there's nine assignments of error in the petition for review, and I'm only going to focus on some of the items today. So, as far as today's takeaway and what I would impart, this case has some unique facts and there are some rare legal questions for teed up for the board to decide. Uh, the most consequential is the sixth assignment of error which relates to RS 1978510AB. which provides a remedy to an applicant when the local government's action was for the purposes of avoiding OS227178 the 120day requirement or the 120day as I will explain this case falls within the scope of that remedy because petitioner didn't have a true decision on the merits within the statutory timeline and was instead denied it substantial rights to a full and fair hearing because of concern with possible mandamus this in whole or part. I hope to spend most of my time discussing this, but that's not the only rare or unique item. So, kind of want to quickly run through some other important things before I can address that that analysis and some of those cases I cite in the petition. So, uh there were a variety of errors before both the planning commission and uh the city council. Uh errors before the planning commission included the failure to allow response rebuttal evidence including after an open record period and also after at least one exparte contact and site visit and a variety of other evidence outside the record. That's not necessarily rare. But what is rare however is that the city council refused the schedule denovo or evidentiary hearing to cure the errors which occurred before the planning commission and instead decided after an onrecord review where no new evidence was allowed >> council did uh the applicant request a novo hearing before the city council >> yes so both in writing we requested the opportunity to submit new evidence if um you know I mean I guess we basically said no harm no foul if you're going to approve approve it, that's fine. But, um, in the event that there's any question at all about the substance of the application, we explicitly requested the opportunity to sub submit evidence in a denovo hearing. >> That's both in a written appeal statement and then also there's a motion to take evidence that has emails with city staff prior to the hearing. And I cite to um various portions in the record where I say we're willing to wave the 120day. were willing um in order to put new evidence in the record if you guys find that there's an issue with the application, which again, it's kind of saying, you know, if you don't need to schedule another hearing if you're going to prove it on the record, again, the staff recommendation uh was to approve. Uh but if there was any question at all, which we also had a suspicion that the city was inclined to um deny it based on public pressure, we made clear that that would be legally impermissible unless there was a new hearing scheduled where evidence could be submitted, which is a nobo hearing under the Carlton city code and under >> Okay. And I understand, thank you for that answer. I understand the response briefs or at least one of the response briefs to say uh that petitioner the applicant would not wave the 120 days. And so that essentially justified the city council proceeding on an on there in an on there way. You're saying that the applicant did request a NOVO and offered to wave the 120 days to allow for a denovo hearing. >> Yes. And I think I explicitly put specific citations in the reply brief. Um, but even to the extent and and it's also in the petition, but even to the extent that that is their position, I would say that's an interesting argument to make that actually falls directly within the scope of what OS 1978510AB is intended to um to prevent, which is basically conditioning applicants their substantial rights to a full and fair hearing based on the 121day deadline. At the record, I think it's uh 87. That's exactly what we argue in our appeal statement that you can't compel an applicant to wave the 121 day. It's the city's responsibility to select a timeline compatible with OS 227178. Um but even here again as a practical matter because we just wanted to get this application approved. We were like at this point if that is the issue we will extend the 121 day tell us how much time you need to schedule denovo hearing submit evidence and I think those citations are in the reply brief if but they're it's in the record you know >> thank you uh one more question if we were to sustain one or multiple of your procedural assignments of error first of all what which gives you the most relief second of all what's your position on how we should proceed in terms of remedy and reaching any of the merits of the criteria. >> Uh my position is that I think there is clear procedural error um in that we weren't allowed rebuttal and response evidence um after the open record period um we were denied final written argument and under the unique facts of this case I think that did extend to the city council proceedings. Um the city knew that but they proceeded to have deliberations on October 22nd because of concern with mandamus. They said that expressly the Miller v. Multma County case shows that staff statements and recommendations are relevant evidence of intent of the local government. Um so I think that gets you procedural error. >> Okay. So, if we sustain that assignment of error for violating the statutory 7-day final argument uh allowance, would we then need to also address your arguments about bias and uh conflicts of interest or would we not address those things? >> Well, I guess so, so sorry. And just real quickly, um I guess my point is that the what grants us the most relief and I put it at the sixth assignment of error because I wanted it to be after you can read through the procedural errors, but it's RS 19783510AB, but the case law and I encourage you guys to, you know, and you will, but the Walmart um final opinion and the Walmart order and the so the Walmart v central point, if you read that opinion which discusses the the the intent of that statute. This is squarely within the merits. So, but there has to be and what hasn't happened in any other case until now is there has to be a uh deprivation of the petitioner substantial rights to full and fair hearing. So, you got to find one somewhere. I would say here it's the lack of response and rebuttal evidence after the open record period at a minimum. Also, you could argue the lack of final written argument. uh but that would give us a reversal of the city's decision uh in an approval with the uh conditions of approval that were proposed by staff and the applicant. I think it's there's a city of Salem case and that was when a city acted outside of the range of its discretion but you basically say okay we have to reverse it and approve and then we'll go back and you know the city can go back and find what conditions of approval or were uh you know suggested and recommended then that's what the city has to go back and do. So I would say you that would grant us the most relief is reversal on OS 19783510AB because the petitioner did not have a um its substantial rights were violated uh and it didn't have a full and fair case um and therefore it was not a decision on the merits. It was instead a proforma decision. Again, if you really read the nuances of the um uh the Walmart case, um that's what the board is looking for and what Walmart didn't allege in that case which prevented it from getting that relief. Uh in addition to, you know, later cases, Oregon pipeline in 2013, it's discussed and um Sirelli. Um, so you have to find the prejudice of the substantial right. Uh, and then assuming there's a situation that falls within the scope of the remedy or S197 83510AB, that would grant us the most relief. I think you should still go and um uh proceed to I think you the board could and should proceed to a bias analysis um because that would but I suppose it does not have to if it finds that there was a um substantial right which is prejudice that denied the applicant a full and fair hearing uh because of concern with um the 120day deadline which the Miller v. Multma County case says it doesn't need to be the primary purpose. It just needs to be in whole or part or consideration of the local government. That's in one of the footnotes. And then in the body of the opinion, in that case, Miller v. Mulnoma County uh the board did not grant relief because Luba found that the county commissioners um didn't even consider the 120 dead day at all as a matter of fact. Instead, they found they the board found that as a matter of fact, the board thought they were just taking a purely ministerial act and just memorializing what had already been done, which was uh an entering a mistakenly and innocently entering a non nunk pro tunk order based on a prior oral decision that is distinguished from the facts of this case. Um where again, this is not something that would become ubiquitous. So, it's not something that I think for policy purposes the board should be cautioned about granting relief on, but this is a rather rare case where there is a deprivation of the petitioner substantial rights to a full and fair hear hearing if nothing else on the lack of rebuttal and response because of concern with the 120day deadline in this policy matter. the entire the Oregon legislature wanted to make sure that applicants can have a full and fair hearing within that 120day deadline and you don't condition their right to a full and fair hearing um because of the 120day clock. It's the city's responsibility to make sure that they get the full and fair hearing within the 120day clock. The Walmart opinion discusses that a good faith approval is one on the merits which means a real decision which mean and it even says that means an adequate evidentiary record which would withstand appeal here >> you're going you're going into your rebuttal and you're welcome to but at this have about four minutes for your rebuttal. So just wanted to make you aware of that. >> Okay. I would just say quickly because just um you know there's obviously a lot to go through the the briefs and the reply have a lot there. I would say that um as it relates to bias, if you're not going to find a reversal because of the um application of the OS 19783510AB remedy, um you know, the bias, this is unique. This is Columbia Riverkeeper and Bots Marsh have a very narrow uh basis to allow for actual bias. I think that's um the case here. And with that, I will reserve the rest of my time for rebuttal. >> Okay. and you'll have about three and a half minutes for rebuttal unless there's questions from the board. Okay. Uh three and a half minutes for your rebuttal. And with that, we will turn to uh respondent or intervenor respondent, whoever wants to go first. Go ahead. >> Interviewer respondent. Um Andrew Monkey for intervening respondent Felix Madrid. I'd like to begin by talking about generally the framework for the first, second, third, and assignments of error. And it also includes the fifth and sixth assignments of error. But you know with respect to these procedural errors um alleged by petitioner these all have to do with and I want to refer Luba to the Pinnacle Alliance Group uh case but when there's an opportunity later in the proceedings or before the final decision maker to submit evidence during the denovo hearing um then that opportunity is adequate to ensure that the petitioner substantial rights to prepare and submit its case. How does that apply where there is no denovo hearing here? So in this case I I think it gets to the point that um uh your question earlier about uh the 120day clock and here it is it is true that the record shows that um the petitioner did ask for a denovo hearing but again the petitioner never authorized that denovo hearing by giving the city the uh waiver for the 120 day clock that it needed to actually have those proceedings. And so >> Kishner said during his argument that they did offer that they were willing to wave the 120 days. So you're is this a disputed fact here? >> Well, no. And I think I think what I want to say what I want to and and and petitions council did it again here is they're making a conditioned offer. They're saying for on a hypothetical event that they don't know the outcome of. So they're saying we'd be willing to grant uh this authorization uh if you feel that you need it, but otherwise we don't think it's necessary. We don't and and specifically the words here that are cited in the reply the made in the record and made actually before the final decision maker is um we would be willing to grant a period of time to hold the record open but then in the next breath council states we don't think that's required and again he says the applicant be would be willing to grant a waiver of the 120day rule essentially for the time period necessary to have another hearing but again that's not necessary under the circumstances because the criteria are met. So I don't think in other words this isn't a case in which similar to lower lake subcommittee um cited by the applicant in which the c the count the county or the city simply denied a request or declined a request for a denovo hearing. What happened here is petitioner made the request but they never took the additional steps needed to authorize um the time needed to have that hearing. And so this is more a case in which um petitioner had the opportunity but did not uh take the steps necessary to take that opportunity. Um and so these errors basically negate I think the first, second, third and also fifth and sixth assignments of error. um because because petitioner again was was always conditioning its its request or its willingness to provide authorization um on something that had not happened yet. >> So even if petitioner didn't authorize an extension 120day clock, why is it petitioner's responsibility to help the city out when they've for for whatever reason have taken longer than they're supposed to have taken? Well, I think in this case, um, the city's procedures, uh, G provided the option of a denovo hearing and, um, so again, that was, uh, based on petitioners, assignments of error in in a local appeal. And so it was petitioner's burden then to provide the the city the time it needed to address those assignments of error. it had the opportunity. And I I think I think that's the thing here is that the the case law shows that if if the opportunity is available and a petitioner does not take it, then there's no substantial prejudice here. um or there there's no prejudice to a substantial right because again I think I think what happened here is that the petitioner simply wanted to win uh and wanted to proceed with the development um and was not willing to put in uh more additional was not actually willing to put in additional time to um allow additional evidence to be submitted. And that brings me to the sixth assignment of air here and I I think this really turns on um two things. The first is preservation. Um which again respondents and I think intervenor respondent's point is that um petitioner did not raise the issue of a violation of RS227178. In other words, petitioner did not argue that the city was avoiding the requirements of the 120day rule or otherwise violating RS227178. Um, and it did not do that at any point in time before the city council. It did not do that before the planning commission. And it certainly did not exhaust that in its appeal statement. Um, and so for that reason, it's it's not a matter of of, you know, whether or not uh necessarily petitioner cited 1978 subsection 10AB, although it didn't. Um, it's it's also that it did not raise uh significantly the error. um that it is trying to remedy in these proceedings. Now um and I'll point out that you know the raise it or wave it rule applies to issues not specifically criteria. And so um even if there's an argument that somehow RS227178 wasn't a criterion or somehow did not need to have been assigned error, it's the issue was not raised uh below. And so for that reason, there's no opportunity to to raise those on appeal here. again, I think that petitioner had the opportunity to request and authorize a denovo hearing, but never specifically made that authorization. And I think what that would have looked like here is um petitioner just saying I will authorize an extension of a month so that we can have come back and have another hearing and do that and I make a motion to do that in in front of the the city council here um you know at the hearing and petitioner simply didn't do that. It only stated a willingness to potentially do that but it never affirmatively gave um the city council what it needed for that. Finally, I I do want to point out that the city my reading of Walmart is that um those the remedy provided uh in pardon me 197835 does not apply when the city issues a decision on the merits or makes what would otherwise be a good faith decision. This is not an instance of bad faith um denial uh of the opportunity for hearing. The city made an actual goodfaith decision on the merits and the record shows that simply put the the applicant failed to comply with the access spacing standards, failed to comply with the standards required to modify uh those access spacing standards and failed failed to comply with the off- streetet parking standards. And those are all new bases for denial that were included in this in the final decision makaker's decision. And so I do not believe that they were affected by any of the potential errors in the lower decision makers um decision. And I'm going into uh Mr. Yan Mlette's time. So I will stop it there and turn it over. >> Go ahead. Thank you. Uh madame chair uh board uh one of the uh prior questions related to which assignments of uh error the board should rule on and that brought in uh petitioner's fourth assignment of error relating to actual bias by councelor uh Terrell. Um it is a respondent's position that uh petitioner failed to preserve this uh issue for appeal during the city council hearing. Uh, councelor Terrell made multiple disclosures of uh, exparte um, excuse me, not really exparte contacts but outside statements um that may indicate bias against this particular kind of development. Uh, those disclosures were made on the record. Uh, councelor Terrell uh then explained again on the record that she understood the high bar that public officials are held to in making a decision on the merits of the case. Uh that they must afford um the applicant a impartial uh hearing and they must base that decision on the applicable criteria. Um after um all of the council members disclosures were made um uh in open room um with uh petitioner present uh an objection to any of the disclosure statements was uh requested. No objections were made. It was only when uh petitioners or applicants council realized that the council was going to deny the application, excuse me, that an objection was made uh raising concerns about councelor Terrell's bias. Uh the record um does not include sufficient evidence to prove actual bias or that councelor Terrell prejudged this case. Uh the discussion among the council, the final decision maker in this matter clearly showed that the decision was made based on the applicable criteria and the substantive merits uh of this. >> Do you have any case citations where we found a bias concern was waved when there were initial disclosures and the objection didn't come until later in the same hearing? I >> I do not have a citation for that, Madam uh related to the um bias matter depending on uh again it's relating to the uh prior question on requested relief and uh what happens after this hearing after the board makes its ruling. Uh there was an allegation in petitioner's fifth assignment of error that um one of the planning commissioners had an actual conflict of interest in this matter. Um uh the concern there relates to whether uh Commissioner Fernandez Madrid, the ex-spouse of Intervenor respondent Felix Madrid, who is an uh owns property adjacent to the development, um whether they were a relative under the applicable Oregon statutes, in order for an individual to be a relative when they are expouses, there must exist a legal support obligation. between the public official and the uh outside impacted party and specifically the statute says for that outside individual. Um uh petitioner has submitted a motion to take additional evidence relating to the prior uh dissolution proceedings between intervenor respondent and commissioner Fernandez Madrid. Um but the only evidence that a petitioner uh proposes to include indicate that there may be a support obligation from uh intervenor respondent to Commissioner Fernandez Madrid which is the opposite phrasing of the statute. It would need to be a legal obligation that Commissioner Fernandez Madrid held for intervenor respondent in order for them to qualify as relatives under the Oregon statutes for conflict of interest. Um, recusal would only be required if the parties were relatives and there was an actual conflict of interest. Uh in this uh case it is at best a potential conflict of interest that um should have been disclosed but it is our position that there is uh no disclosure was required because there is no conflict of interest. Uh so if this matter were to go um back in front of the planning commission um it would be the the respondent's argument that there is no conflict of interest that would require commissioner Fernandez from Madrid to not participate. in that hearing. Um the seventh, eighth, and ninth assignments of error uh relate specifically to the uh applicable decision criteria. Uh specifically uh the seventh assignment of error relates to the uh conditional use permit. Uh there were multiple uh specifically cited instances where uh the application uh at issue here did not meet the criteria um in the Carlton development code um relating to site size and dimensions that they must be suitable for the proposed use. um uh petitioner made arguments on the or made statements, excuse me, on the record um that uh they could only develop the property with two driveway accesses um which is not um allowed under Carlton's development code for this uh parcel. uh and therefore uh the site and size the site size and dimensions are inadequate for the proposed um development. Um and there were additional issues relating to the site design review um again relating to that driveway spacing standard and it was uh inappropriately requested to be modified under uh as a major modification of street uh standards under Carlton Development Code 17.64.05. 050. Um, so, uh, time is closing in. Uh, it is respondent's position that the petitioner's petition for review fails to allege that any substantive, uh, substantial rights were impaired based on the procedural irregularities um, at the lower hearings. Um, and the applicable criteria uh, support a denial. when there is adequate evidence on the record supporting the city's >> Thank you. Uh and thank you for being mindful of your time. We just got to 15 minutes. Appreciate that. Uh we'll return to petitioner for your rebuttal. Uh you have three and a half minutes for your rebuttal. Go ahead. And you're on mute, petitioners council. >> Uh thank you, board chair. Um, so yes, we dispute as a factual matter that we weren't willing or we did not offer a waiver the 121day deadline. We make citations to that point. Um, he does acknowledge we requested denovo hearing. Um and again even if his argument or even if as a matter of fact we didn't offer a waiver that kind of comes to the crux of our position which is you can't condition an applicant's uh substantial right to a full and fair hearing on a waiver of the 120day deadline or 227178 um says you can't we cited to that I think record 87 um in our appeal statement you just you can't do that and that's kind of the crux of the whole thing. So um and yes, our statements were conditional because we were stuck in an on record appeal hearing. So um we I mean we were in a position where we we were informing the city that in our view it would be legal error to deny the application if they didn't give us a denovo hearing or in request to submit um evidence um and and or they could approve it. Um but it would be legal error if they had substantive issues to to make the denial in that on record review. They were aware they could cure these procedural issues that we alleged, but they chose not to and they made a denial after the on record review. So that also goes to the um as it relates to preservation. Um issues are different than arguments. Um the board is aware of that. The issue that the OS 19783510AB remedy is intended to protect is an applicant statutory right to a full and fair hearing within the 120day deadline. It's intended to add teeth to the 120-day deadline. That's what Miller vultma county say and the Walmart cases and other subsequent cases. So the a bad faith denial means a denial and this is discussed in the Walmart uh final opinion. A bad faith denial, it's kind of interesting language, but a bad faith denial means a denial not on the merits and not on the merits means a denial which denied an applicant it substantial rights to a full and fair hearing. So we argued that issue below it was preserved. We didn't cite the remedy but that's not unusual because you know petitioners below or applicants below aren't talking about you know RS1978359C you know substantial evidence what have you. The substantive issue is that we were denied um a full and fair hearing with uh because of concern with the 120day deadline and in particular mandamus in whole or part which I think the respondent acknowledges that the uh mandamus was was a factor in the decision. So, uh, as it relates to, uh, councelor Terrell and and bias if if the board reaches that, um, assignment of error. Um, I I just as a factual matter, I disagree that her disclosures were adequate. Um, again, part of the issue that applicant had in this case is we didn't have enough time to review things. And so I guess the board has a policy question of, you know, are they going to require an applicant to um are you going to essentially reward um an inadequate disclosure because it's a lot different to say, you know, I signed a petition at some vague point in the past versus I signed a petition in opposition to this specific application um uh which uh you know opposed the application at this particular site. And in any event, um, we did, I guess by just stroke of luck, end up objecting anyways, which as a matter of preservation gave the city opportunity to cure and correct, which is the the policy intent behind preservation, giving them opportunity to correct the error before an appeal. So, um, and that go and then the city made a decision on a tainted record. Um, >> okay, we've, uh, we've exceeded your time now. So, let's look. >> Thank you, board chair. >> Yep. Thank you. Uh, that will conclude oral argument. The statutoary due date for our decision in this appeal is July 1st. We'll ask that the parties agree in advance that we issue our decision no later than July 22nd. Is that okay with these parties? >> Nods all around. Thank you. Uh and thank you for your arguments today. And that will conclude our oral argument. and

Summary: Good morning. This is the time set for oral argument in luba number 2025-088 JIPR LLC versus the city of Carlton. I'm board chairs Moodio. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking. That will help with the recording. And uh in this matter we have a motion to take evidence and a motion to strike that are pending. We will resolve those in our final decision. And petitioners or petitioner, you have a tot…


Oral Argument 2026-018 Paxton et al v. Clackamas County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=hsj-MV84xys). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Mhm. >> Mhm. Good morning. Uh this is the time set for oral argument in Luba number 2026-018, Paxton versus Clackamas County. Uh we had not seen the petitioning yet, so we will restart now. Okay. Good morning. This is the time set for oral argument in Luba number 2026-018, Paxton versus Clackamas County. I'm board chair Samudio. Board members Wilson and Basham are also present. Please keep your audio muted when you're not speaking, which will help with the recording quality. And this oral argument is being recorded and live-streamed. I'm not aware of any pending matters in this appeal. Is there anything that the parties need to bring to our attention? Negative from both parties. Okay, thank you. Uh oral argument is a total of 30 minutes. Petitioner, you have a total of 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> Uh yes, please. Uh 5 minutes. Thank you. >> Okay. And I will keep track of time and ask that you also keep track of time on your end. The clock that's on the screen is just for reference and is not keeping exact time. And then respondent will also have a total of 15 minutes for responsive argument. So with that, petitioner, please state your name for the record and begin. >> Thank you, chair. Good morning, good morning, members of the board. Tyler McDonald appearing pro se for petitioners Michael Paxton For context, this case began with a roof. On March 4th, 2024, there was a fire at a building and then the fire department cut a hole in the roof to fight it, leaving the roof open to the weather. We applied for a like-for-like roof repair permit. We did not come to the county in doubt about what this building was. Our pre-purchase due diligence pointed one direction. The assessor's record, the 2005 approval, the county's on files, all commercial. The county held the permit and required us to verify the non-conforming use first, so we did. A roof repair began as a full A roof repair became a full verification and alteration proceeding. Then the county denied the verification. What began as a permit to keep the rain out became a fight over land use right that a final unappealed decision settled 20 years ago. The application has three questions. Was the use lawfully established? Was it discontinued for 24 consecutive months? And was it lawfully resumed within 1 year of the fire? The hearing's officer answered the first in our favor. He found the office use lawfully established in 2005 and that finding is not before you. But it matters because the county's first theory was that the 2005 approval was never valid for a lack of permits. Permits the county itself never required in 2005. That attempt to rewrite the 2005 decision failed. The hearings officer ruled against us on discontinuance and restoration, and those are the rulings before you. Before I turn to them, a framing principle. Many non-conforming uses reach this board with no prior lawful establishment decision. This case has one. The 2005 decision Z0797.05 is our source of truth. A final decision is worth what it says on its face, not what anyone wishes it had said 20 years later. Redefining the scope of a final decision by later observation is the Marcom Farms error. So, I'm not asking you to re-weigh evidence. I'm asking whether the hearings officer applied the right standard and what findings you can actually review. I will start with discontinuance and with what was approved in 2005. The county approved a service commercial office use of the entire 2,962 square foot building at record 264 condition 2. No floor allocation, no square foot allocation, no documentation requirement. The county conceded at record 33 to 34 that the 2005 file contained no floor plan, no architectural drawings, and no request for site plan. Only a narrative, a hand-drawn plot map, and a one-page 1987 tax valuation request. That was enough for a full change of use from restaurant to office. Now, look at what the final order demands in 2026. Floor by floor, tenant by tenant documentation from petitioners applying to repair roof. A higher evidentiary standard for a roof repair than the county applied for a change of use 20 years ago. And the division of of the building by floor was not our idea. The county introduced it after the fire as the only only path it offered to get the roof repaired. We never conceded the building wide approval. And here's the part the hearings officer cannot get around because he wrote it. At paragraph 5E, he held the county could not 20 years later reverse the 2005 finding that no permits were necessary because a final unappealed decision cannot be changed by requirements it would never imposed. And he was right. He then imposed floor allocation, tenant documentation, and subcategory restrictions the 2005 decision did not contain. Same principle, opposite result. He treats the same use as a build building wide when he establishes it and down serves only when he counts it. A decision that cannot say what is approved cannot tell which standard applies and cannot be reviewed. Our first assignment of error. That rewrite drives the discontinuance ruling and it starts with the burden. Five weeks before the staff denial, the county's own planning director put the framework in writing. Record 534. Director Hughes wrote that on a 10-year showing of continuity, quote, the burden then shifts to the county to demonstrate whether a discontinuance occurred. On a recorded call at record 243 to 244, she told us what would establish that showing. Tax records, business records, old photographs. We produced exactly that. The hearings officer recited that framework at paragraph 6B never told you which standard applied. The burden going forward never moved to the county. Third assignment of error. And look at the evidence on each side. Petitioners produced primary evidence of commercial use throughout the 10-year window and beyond. Business registrations at the site. Continuous commercial tax payment through present day. Mr. Parker's continuity statement at record 615. Against that, the county had secondary evidence requiring inference, a water consumption gap from 2010 to 2013 despite the account remaining active and being outside the 10-year window, and alleged power disconnected May of 2023, 10 months before the fire, and 18 months before the sale to Mr. Paxton, and an alleged registration gap. None of these identifies a single continuous 24-month period of continued uh of office use cessation. Discontinuance requires one unbroken period, and the order never ties these scattered years into one. That is a gap in the findings, not a dispute about weight, for the assignment of error. The order also contradicts itself on the rule that governs this. At paragraph 10e2, the hearings officer acknowledged Coons that residential use of one portion of a building does not terminate the office use of another. He then applied the opposite. The mere presence of residential use in part of the building does not show the office use stopped anywhere. Turning to the second ground, the 1-year deadline >> Or uh Mr. McDonald, before we we turn to that, um it's a little unclear to me from the decision and your brief exactly what what is your position? Like what happened between What was going on there between 2015 and 20 2025? Cuz that seems what the real issue is here, and it seems like maybe there was overlapping offices. Was there one office? Was there two offices? Was there three offices? Was there residential use? Could you sort of give me a timeline from 2015 to 20 2025 that shows what you are arguing what office use occurred there for those years. >> Of course. Yeah, uh the the timeline provided uh within the uh record um uh has a outline of the uh multiple businesses that were there. Um it was actually being leased to Hood Alternative um Medical LLC. >> Is there a Is there an actual timeline in the record? You refer to the record, but is there a page number we can look at that will show us that? >> There is. Yes. >> kind of jump around, so I think we're trying to figure out a continuity. Um I believe it is around uh record 615. Um I don't have it on this sheet here, but I do believe it is record around record 615. It was towards the beginning of our um it was in response to the incomplete notice from March 28th, 2025. We submitted it on May 22nd May 21st or May 22nd of 2025. Um I don't have the exact citation in front of me right now. >> That's fine. If you could just summarize that also. >> Sure. Yeah, it is a full uh full timeline from 2005 all the way to uh 2025. It dives into uh it's color-coded. It goes into multiple facts of the businesses that were there, uh utility records, commercial taxes. It puts it all on a timeline for them to be able to see um that there is no 24-month um uh discontinuance period um including uh the COVID-19 state of emergency as well. >> So there were multiple offices operating out of the building at some points? >> Correct. Uh I don't think at one period, no. Uh there were multiple throughout this time period that were uh conducting business like but alternative uh uh Mr. Parker, the previous owner, uh had multiple LLCs, uh property management LLCs that he ran out of the building as well. >> So just one office use or one specific office at a time? >> From our From our understanding of what we've gathered, yes. That is our understanding. Correct. >> Okay. Thank you. >> Yes. Uh uh turning to the second ground, one year deadline to restore the use. ZDO >> You have about 30 seconds left for your primary argument. You're welcome to continue on and shorten your rebuttal period, but I just wanted to let you >> Fair. Okay. Thank you. Appreciate that. Um Yeah, moving to the second ground. Um The ZDO reads that the law for resumption there are two pathways. The permit is one pathway, the resumption is is another. Um for the first time he recast the upstairs as an expansion and decided the restaurant permits alone. Um the whole building was approved in 2005, so moving within it is not an expansion. Um there are three distinct reasons that this should not stand. A resumption was shown on the record. Um a specific response by Mr. Parker Um on uh explained that he was using this after the fire. It was a direct response to Miss Ganzers question of how it was being used. The final order takes the narrow answer and labels it as storage, reads the file access language out of it. Um even so, Mr. Paxton's affidavit at record 653, Mr. Aaronson's invoices at 656, and the McDonald affidavit at 658 are all within the one one-year window. Um Uh you know, this In In closing here, um we ask you to remand as we have provided extensive records in this In the In the 900 place records, you can see multiple businesses, questions answered, and efforts to uh get this property fixed after a fire. So we just ask you to look at the entire record. I reserve >> Thank you. You will have 4 minutes for your rebuttal and we will turn to the county for your argument. Please state your name for the record and begin. >> Thank you. Caleb Hugel for respondent. As has been said, the hearings officer had two reasons for denying the application. The first was that the petitioners didn't show that the office use of the building hadn't been discontinued. And the second was that because the office use in the upstairs portion of the building had been discontinued, petitioners using the upstairs as an office after the fire wasn't sufficient to lawfully resume the use within a year. I think the three the three most interesting arguments that petitioners advanced are those related to medical office use, storage use, and whether the discontinuance findings were supported by substantial evidence. Those are I think the sort of media's issues here. Um We don't understand petitioners to argue that office use includes medical office use. Rather, in the petition for review, we understand petitioners to argue that service commercial uses includes medical office use. Our point is that the 2005 decision didn't authorize all service commercial uses. It authorized one in particular, office use. The hearings officer concluded as evidenced by the ZDO that medical offices are not the same as other types of offices. And I think that makes intuitive sense. >> Mr. Hugel, sorry to interrupt, but did did the hearings officer find that that that Hood alternative was actually operating there and and then said it was a medical office, not a a another kind of office, or did he just find that we can't he couldn't tell what was going on? >> The hearings officer concluded that there was no evidence that Hood was operating an office to the extent that they were operating a medical office. He said that is not the same. The hearings officer did not conclude that there was and there and and truth be told if you look at the record, there is no evidence that a medical office was happening at all. So even if Luba were to conclude that uh you know, medical office as it's defined in the code could qualify as an office use as it's undefined in a non-conforming use decision, there's still there's still no evidence that office use took place, medical or otherwise. >> Okay, that's what I that's what I thought. I just want to make sure you weren't saying that a medical office was occurring, so. >> No, I no, I'm not. And and sort of going back to your I think um record 13 to 15 is where the hearings officer and I agree he jumps around. 13 to 15 is where uh he adopts the finding saying, "Well, petitioners argue these offices were operating on the property at these times." There was some overlap, by the way. Um I think the gist of the hearings officer's conclusion is that yeah, so so some businesses were associated with the property. They used it as their mailing address or their their uh their office address. That is not office use of the building. Anyone can say that an address is where I would like my mail sent or where I am conducting business. That is a far cry from actually using the space for office purposes. That's what I wanted to get to. Yeah. >> Um so and and again, like you said, the hearings off the decision jumps around a lot and I'm having trouble telling exactly when he found those 24 months were where there was no office. He's not I think I think you did an excellent job of trying to pull out the important stuff from the decision and make it more understandable, but if you could tell me what what what which 24 months did they not show that there was office use? Or where in the decision does that say? >> I think that the hearings officer reading the hearings officer's finding is none of the evidence that was presented showed that office use was happening for any of those 24 month any for any of those 24 months in the prior 10 years. The hearings officer you pointed to it was it was petitioners burden to identify the evidence demonstrating office use. Petitioner pointed to how businesses were associated with the site but not that that not how they were using it for office purposes. So I think the fair reading of the >> that the hearings officer found that none of that 10-year period from 2015 to 2025 there was not sufficient evidence that there was any office use during that 10-year period. >> No, I don't think the >> you know that from the findings? >> I don't I don't think the hearings officer found that the hearings officer didn't find that there was no office use for a specific 24-month period. Petitioners are correct about that. I don't think the hearings officer was required to was not the hearings officer's job to say and during this period it was discontinued. It was petitioners job to say and it was an office use for the entire 10 years and here's the evidence demonstrating that and the hearings officer said, well, none of the evidence you provided demonstrates that there was office use. >> Okay, so then the the my question again is for that 10-year period from 2015 to 2025 your position as the hearings officer found that there was no office use during that entire 10-year period. >> The hearings officer found that petitioners didn't demonstrate that there was any office use for that 10-year period. >> So your position is hearings officer found there was inadequate evidence to show that there was any office use for that 10-year period and if that finding is accurate the hearings officer wasn't required to find any particular 24 months of discontinuance. It's any time within that 10 years. >> That's correct. All of the evidence that petitioners pointed to the hearings officer didn't say any of it was was sufficient to demonstrate office use. >> So your reading of the findings is the hearings officer said all of the evidence that the petitioner presented shows that there was no office or does not establish that there was any office use. >> Correct. >> It's hard to find that in those findings, but I understand that's your position. >> Well, but but I mean I think it's record 14 to 15. It goes through all of the evidence that the petitioners provided for why there were there was office use going on and it was the fact that certain businesses were associated with the property. And the hearings officer goes on to say, "Yeah, but none of that evidence explains how they were actually using the property." The hearings officer was of course responding to evidence provided by the petitioners. It wasn't the hearings officer's job to come forward with evidence on his own. Um uh that that office use was not happening. It was whether the petitioners presented evidence that it was and the hearings officer clearly found that it that they didn't. >> Thank you. >> Was it Is it clear from the findings that he was finding that uh there was no office use for this for this for a 20 Well, I guess for the whole 10 years, no office use of the entire building and no storage use? Like, let's say let's say we we agree with petitioner that they didn't have to like split up the building. As long as there was a use anywhere in the building, they're okay. And that office storage was okay. Even if they get all of that, is there still something in the decision that says even if they even if that's true, they still didn't show the whole 10 years? >> I don't think so. As I read the hearings officer's findings, um it is that storage use of upstairs began taking place uh after the fire. I I don't read uh the hearings officer's findings or the evidence he points as saying storage use of the upstairs happened before the fire happened. So, I think you you're still left with a 10-year gap. But I think I think even if even if and and and I don't think resuming office use or office-related storage use, if you consider it office use, of the upstairs even though that happened after the fire, the hearings officer's point on the restoration or replacement and the one-year timeline was that that was not sufficient because there were there there the upstairs there is no evidence that the upstairs was ever used as an office. So, office use afterwards can't resume that portion of the >> Okay, thank you. >> Um >> I understand you're in a position where you didn't write the decision and you have to be defending it. I'm just having a little bit of trouble finding that idea that there's no no office use was established during that 10-year period. Can you point me to specific finding? >> The the hearings officer did not find there is no there was no office use during the 10-year period. The hearings officer framed this in terms of petitioners' burden. Petitioners were required to put forth evidence demonstrating that there was office use for the full 10 years. And the hearings officer addressed every piece of evidence that they provided and concluded that doesn't demonstrate office use. And accordingly, the hearings officer concluded petitioners didn't meet their burden. But the hearings officer wasn't required to find that there was discontinuance for 24 months. The hearings officer was required to find or determine whether petitioners demonstrated that there wasn't a discontinuance for 24 months. It's all about the burden. And and the hearings officer adopted a finding specifically addressing the argument we see in the petition for review that it was the hearings officer's job or staff's job to come up with a 24-month period in which no office use was happening. That wasn't the case. It was petitioners' job to come up with a full 10-year timeline, not just that businesses were associated with the property, but that they were using it as an using it as an office. And petitioners didn't meet that burden. >> Okay. And then you make some distinctions in your brief about different types of office use or office storage versus office use as is described in the current code. Are all of those code provisions that you rely on, were those in effect at the time of the 2005 decision? >> That's not in the record. I don't think, but I don't think it it was and and maybe that would strengthen the hearing's officer's decision. I don't think the hearing's officer was saying because these provisions were in effect at the at the time of the 2005 decision, the terms must be based on them. I think the point is that uh because this is a non-conforming use, office use has to be construed narrowly as a matter of policy. That's the park's decision. And and and because the current code >> Why would you look at the current code to Sorry, you were getting there. I'm going to >> Yeah, I was going to say yeah yeah I think I think the the distinctions between medical office use and office use and distinctions between office use and accessory uses including storage demonstrate that they are not one in the same. Uh I think it's a matter of how how uses are characterized. We have to We have to construe non-conforming use decisions narrowly. Uh and and how could we construe the term office use in a non-conforming use decision to mean something broader than it would mean under the commercial zoning today where where office-related storage is is specifically called out as an accessory use. It it's not automatically >> your argument's a contextual argument cuz I think counterargument to that would be well, if it wasn't distinguished in 2005, then the county would have had no reason to to describe all of the sub uses or all of the uses which again, like nobody can attack the 2005 decision at this point. I don't think anybody is arguing that you can't. So I understand your >> And though that And that was all I was going to get at. I think we've touched on all the arguments I wanted to make. Substantial evidence. Importantly, who had the burden of putting forward evidence? And and and did the hearing's officer do an adequate job of explaining why they did not meet petitioners burden. And then the office use versus medical office use, office use versus storage use, and it comes down to we have to construe these narrowly. Um and and that's all I have. I will um yield the rest of my time unless there are further questions. >> Um yeah, so kind of getting back to my earlier question, I understand your argument that you know, it's their the petitioners burden to establish that they had the continuous use for 10 years, but I still think if the the the decision's got to point to some 24 months that he found they didn't establish. And I think I understand you say the whole 10 years they didn't establish. And I'm looking I'm trying to find a finding that would support that. And I'm looking at it's page 13 of this decision and I think it's 9B sub four. He's talking about the Hood Alternative Medical Center, and he says therefore, absent some evidence demonstrating that Hood Alternative Medical Center LLC used as an office rather than a medical center or other use between 2014 and 2020, the hearing's officer must find that the non-conforming use of the site was discontinued during the period and may not be resumed. Is that enough to hang your hat on to say they did not show for that 6 years that there was office use of the of the of any of the building? >> That's enough, and I think I think there are similar findings as to the other two businesses that were operating during this 10-year period, Parkland and Rockport Crane. The point is that the evidence that was provided saying, "Oh, well, we've got an office operating here." didn't actually demonstrate that there was an office operating here. >> Okay. I thought it was more clear on that one than it was on the other ones. >> And and I'm not going to say that it's not more clear there. My reading of the decision was that sort of it was the same response to all of the evidence. A business being associated with a property is not the same as them conducting an office use there. >> And then my final question is, he's also got a couple sections about stuff that happened between like 2010 and 2015 and I don't see why that's relevant. I think you sort of said even assuming argue window that petitioners right that's not relevant. Is is that anything between 2010 and 2015 relevant? >> I don't think so for purposes of of of petitioner trying to meet their burden. I I suppose no I no I no I don't think it's relevant. The hearings officer could have adopted findings saying well even assuming petitioners had met their burden for the 10-year period these things exist during the 20-year period which defeated. Hearings officer didn't adopt those findings so I'm not you obviously can't impute them to the hearings officer. But I but the question of course is looking at the record um even if you excluded the things prior to the 10-year period could a reasonable person conclude it as the hearings officer did and I think they could have. >> So the stuff he has in there about the water in 2010 that's just surplusage that we don't have to worry about. >> I think the decision is supported by substantial evidence even without that. >> Okay, thank you. That's all I got. >> Okay, no further questions from the board. We will return to petitioner for your rebuttal. You will have 4 minutes for your rebuttal. Go ahead. >> Thank you. Um addressing uh you know the respondents positions here I want to call out clearly I there's nothing in the record that indicates that this is a medical center. Um the comments are based off of the name of the of the business. Um I mean the same the same thing could have been done for Rockport Crane. It's it you know we could make the assumption that that is a uh construction company. Um because they're you know cranes are operating cranes out of there. I mean we're really jumping to conclusions here based on a name um and within the actual hearing itself um there were many opportunities for for these types of clarifying things to be directed at you know the petitioners to get this type of information. Um you know moving to the to the you know the record being thin and not supported by substantial evidence, I believe is my understanding of the respondents arguments. Our words and our affidavits should should matter. And the reason I bring that up is I I point to the 2005 where the complete change of use was was hanging on a hand-drawn site map, a narrative description, and a 1987 request to change the market valuation of that to to then require >> Mr. Dodd, I want to jump in before we run out of time. Going back to that finding I I quoted to Mr. Hugo. So, is it your argument that it was Hood Alternative Medical Center that was the office use between 2014 and 2020? Or was there some other uses there, too? >> It's it's office use. That is >> No, but was it Hood Medical or was it a different company? Hood Alternative Medical. >> Hood Alternative Medical LLC, I believe is the full business name. >> Right. So, you're not relying on some other company doing office use between 2014 and 2020. >> It does overlap because the building was being leased out the overall building that owned the last owner also had LLCs. I don't believe they're maintaining at the same time. I would have to review the timeline again. But specifically, there were multiple throughout that time period commercial businesses active. >> Were there at least 2 years where only Hood Alternative Medical Center was your your office use you're relying on? >> No. >> No? >> No. >> Okay. All right. Thank you. >> In closing, I just I ask you guys to again review the record and specifically the 2005 decision. Specifically regarding the, you know, no jurisdiction to talk about, you know, delays in the expansion as outlined in the reply brief and petition for review, that should be our source of truth and our North Star. Thank you. >> Thank you. No further questions from the board. That will conclude oral argument. The due date for statutory due date for a decision in this appeal is June 15th. We'll ask the parties to to agree to an extension so that we issue our opinion no later than July 6th. Is that okay with these parties? >> Yes. >> Yes, it is. >> Okay. Thank you. Uh

Summary: Mhm. >> Mhm. Good morning. Uh this is the time set for oral argument in Luba number 2026-018, Paxton versus Clackamas County. Uh we had not seen the petitioning yet, so we will restart now. Okay. Good morning. This is the time set for oral argument in Luba number 2026-018, Paxton versus Clackamas County. I'm board chair Samudio. Board members Wilson and Basham are also present. Please keep your audio muted when you're not speaking, which will help with the…


Oral Argument 2025-073/074 Bartholomew et al v. Clackamas County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=NZV1prJo4Fo). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Hi there, Petition Bartholomew. Are you planning to join by video or audio only today? You're muted if you're speaking. >> Okay. Thank you. Yes, I will. There we go. Okay. Hello everyone. This is the time set for oral argument in Bartholomew versus Clakamus County. Luba numbers 2025-073 and 074. I'm board chairs Moodia. Board members Wilson and Basham are also present today. And please do mute your audio when you're not speaking. That will help with our recording. And just for your awareness, this uh oral argument is recorded and is also being livereamed uh via so you can review it there. Oral argument is a total of 30 minutes. Petitioners, you share the same 15 minutes. Have you decided among yourselves how you'll share that time? >> Uh yes. Uh good morning, Madam Chair, members of the board. Greg Hathaway representing petitioner safe Stafford Road. And I'm going to take the first five minutes of our time uh in our opening remarks and then Miss Bartholome take the following five minutes and then we'll reserve five minutes for rebuttal and share that. >> Thank you. Thank you for um figuring that out in advance. really appreciate that. And intervenor respondent and uh the county, have you decided how you'll share your 15 minutes? >> Yes, port chair Ivan is Gutierrez for intervenor respondent Portland General Electric Company. We've decided that I will take uh the first 10 minutes and then Mr. Hugh will take the remaining five minutes. >> Okay. And thank you thank you also for deciding that and working that out before oral argument. And um with that we oh we do have a motion for stay and a motion for expedited ruling on that stay. We've received a response to that motion for stay and we will resolve that in due course. >> Um other than those I don't I'm not aware of any other pending matters. Um okay nothing else. So we will go ahead to oral argument. Um whomever from the petitioner side is starting please state your name for the record and begin. >> Yes chair um and members of the board. Greg Hathaway representing Petisher Safe Stafford Road and uh also legal council. Good morning. Um the focus of my argument this morning is going to be on Petitioner Safe Stafford's roads uh first three assignments of air uh regarding PGE's proposed project. The PG project will replace his existing poles and distribution lines with high power transmission lines with significantly taller and wider poles. Not slightly taller, but significantly taller and wider holes. Petitioner Stafford Road consists of owners of homes in the Stafford Road area that would be visually impacted by PGE's proposed project. These residents are concerned about the adverse visual impacts that PGE's proposed project will have on the use and enjoyment of their residential uses. The hearings officer agreed with Safe Stafford Road's concerns. The hearings officer made these findings. First, PG's project would increase the visual impact with views from budding homes along Stafford Road. Two, PG's project would have significant visual impacts in comparison to PGZ's PGE's existing lines. and PGE's project would create a far more industrial aesthetic that was actually inconsistent with the current visual identity and character of the Stafford Road area. These findings that the hearings officer made were based upon photographic simulations that were prepared by Ed Wagner who's the president of City Stafford Road and those photographs simulations are part of our petition for review. So you have those comparative simulations in our materials. The hearings officer acknowledged that these photographs were uh acknowledged as as uh accurate and he accepted them into the record as being accurate simulation of the comparison between the current PG project and then the proposed PG project. The key question on appeal is whether the county's code would allow such a project with all the visual impacts identified by the hearings officer in the Stafford Road area. In the key co-provision in petitioner's first three assignments of heir is ZDO 12303D. ZDO 1233D allows projects that may visually impair the use enjoyment of residences but not if the project substantially visually impairs the use and enjoyment of those homes. The hearings officer defined the two key terms in ZDO 12303D to apply to his findings. The hearings officer defined the term substantial to mean significantly greater and the hearings officer defined the term impair to mean make worse. and petitioner safe Stanford Road agrees with the hearings officer's definitions and I don't think any party to this proceeding is in a disagreement with how the hearings officer defined those terms in that code division. Uh the hearings officer concluded that the proposed project would not substantially visually impair the use and enjoyment of homes in the Stafford Road area since even though the Stafford Road area would look differently if the proposed project were constructed, those homes could still be used for residential uses. Now, here's the irony of the hearings officer's conclusion. The hearings officer found that the proposed project was visually bad and would adversely affect the visual identity and character of the Stafford Road area, but not bad enough to deny PG's proposed project pursuant to ZDO 12303D because the residents can still use their homes. But it's the opinion of petitioner that's not the test set forth in ZDO 12303D. is not whether the residence could still be used for residential use, but if the visual use and enjoyment of those residences were substantially impaired by the proposed project, which the hearings officer found to be the case. Is petitioner's position that the hearings officer misconstrued his own defined terms in reaching his conclusions? Again, the hearings officer defined the term substantial to mean significantly greater. He defined the term impaired to mean make worse. When you apply those definitions in his findings, you can only conclude that the proposed project would significantly make greater and make worse the visual impacts of the Stafford Road area than PGE's existing lines. is petitioner safe staff for Rose's position that the hearings officer had actually properly applied his own definition of of ZDO 12303D to the to to his findings the hearings officer would have concluded that PG did not beat it burden of proof >> Mr. H. >> Yes. >> Um so I see your quote about or where you quoted the findings that talk about how uh surrounding properties can continue to be used for residences, farms, and other permitted uses. And I I think I tend to agree with you if that's all there was, that's not good enough. That maybe gets to the preclude prong, but it doesn't really get to limit or impair. Um, but the intervening respondents, they also site, I think it's from the page right before that on the record. Um, where the hearings officer talks about the poll will be 250 ft apart. They'll be spaced. Uh, they only take up a small portion of the viewing set. Um the wires are above second floor residenc's windows. So why is that set of findings not good enough? >> Because it doesn't address nor respond to his prior finding about visual impacts. Th this whole argument that petitioners say Stafford Road is about the visual impact on the enjoyment of those homes on Stafford Road. And so the quote that you just had uh uh uh was was is in our opinion not relevant to his ultimate finding that he made which was that the visual identity and character of Stafford Road area would be altered by this project. And so that finding that he made in our opinion isn't even responsive or rebutt his prior finding. If if he's using that as the basis then to overcome his prior finding we don't think that's adequate. I understand the respondents or intervenor respondents to be arguing that that quote about the industrial aesthetic that's whether or not you alter the surrounding use of the area and then once you find out that it has been altered then you go to the next step and does this substantially impair limit or preclude in this case residential uses. So why is why is it why I'm not sure why that makes the Well, the key finding that we're focused on is the finding that was made by staff in denying PGE's non-conforming use application. And the hearings officer adopted that finding on visual impacts in this decision. And I know that a respondant is arguing that they're two different standards and they are, but the fact remains is that the hearings officer adopted the same finding and applied them to the standard in this case. So those findings are applicable and those findings stand on their own two feet. And if you apply the definitions that he defined, which we have no disagreement with, and you apply those defined terms to that finding that he adopted, you can only reach one conclusion and the conclusion is is that the project's going to substantially impair the visual uh identity and character of Stafford Road and affect the use enjoyment of those residences. of the finding that you just cited I think is is not uh a finding that somehow rebutts that p the finding that I just talked about. I mean it stands on its own but if the argument is that finding somehow overcomes that other finding based on the the way he defined the terms uh we don't think that's a good argument. >> Okay. Thank you. Anyway, just to close very briefly, we're just asking Luba to either reverse the decision or reband the decision to the hearings officer to explain how he could make those findings that the project would visually impair, if you will, the Stafford Road area and then conclude based on his definition of the terms that this project would not substantially impair the visual identity and character of the Stafford Road area. >> Thank you. And we'll turn to petitioner >> Thank you. May it please the board. This appeal presents three legal errors on the face of the hearings officer's decision. each independently requires remand, but together they show that the county approved an integrated transmission project under a mclassified project description and as a result failed to apply the applicable approval standards. I'll address these errors briefly. Number one, failure to apply the applicable standards for each zone. The the final order repeatedly describes the proposal as a single continuous 5.9 mile transmission project that adds new transmission capacity along the Stafford Road corridor. That project crosses RRF5 and EFU zoning districts. The land use process requires the applicable standards for each zone be applied to the portion of the project within that zone, but the county didn't do that. Instead, the decision treated large portions of the project, particularly the EFU rightway segment, as categorically outside of land use review and therefore outside of any substantive analysis. As a result, the county failed to apply EFU standards to EF portions of the project, even though those portions are part of the same integrated transmission line approved through this decision. That failure is driven by the county's characterization of the project as mere upgrade or maintenance. By using that framing, the charact the county treated new transmission construction as legally equivalent to existing facilities and therefore exempt from meaningful review. But just to be clear, this project involves removing 256 trees, removing 134 modest wood poles, constructing 5.9 miles of new steel poles up to twice the height and three times the diameter, introducing a new function transmission. building a new line in a onem stretch that has no existing infrastructure, which raises how can you maintain or upgrade when a mile of it has no infrastructure at all. Um, expands the footprint and takes dozens of new property easements. By every land use definition that I can find, this is new construction, not maintenance. And under settled luba precedent, an integrated project cannot be approved unless the applicable criteria are applied properly. And this did not occur here. Allowed. Number two, allowed without review does not mean immune from standards. The second error flows directly from the first. The final order treats utility poles located in the EFU rightway as not part of the analysis because they were allowed without land use review. That is a mislication of the code. Allowed outright means no separate permit is required. It does not render facilities exempt from conditions, impact analysis, or consideration when they are part of a discretionary land use approval. That approach would render large portions of the project legally invisible. Furthermore, the hearings officer exempted the entire project from ZDO Chapter 1000, yet selectively applied chapter 1000 standards such as wildfire mitigation through conditions of approval. Does that mean wildfire mitigation conditions only apply to part of the project? I don't think that kind of pick and choose application is lawful land use review. Luba has made clear that local government may not approve conditional use while exempting major portions of the project from that very standards governing that approval and that is what occurred here. And finally, the county made inadequate findings on the scenic road character impacts. Stafford is a designated scenic road and the final order acknowledges that the project replaces existing poles with taller, more industrial structures, but it never explains how that change is consistent with scenic road policies. Instead, the county relies on conclusory reasoning. Other scenic roads have transmission lines. Some transmission lines already exist in the corridor. That is not the analysis required. The failure to acknowledge that this project involves new construction, not mere maintenance, explains why they never grappled with the magnitude of change being approved. The county does not connect the evidence in the record to the applicable comprehensive plan scenic road standards in a reasoned way. In other words, the county never asked whether the removal of 256 trees and installation of poles of this height, this scale, this appearent, how are they consistent with the scenic road requirements to protect scenic features and ensure visual characteristics appropriate to the setting, particularly when the record shows in the prior denial, the county found these same poles to be incompatible with the setting and to create a marketkedly more industrial aesthetic. Under OS97835, that failure alone requires remand. So in summary, the county failed to apply the applicable standards to each zone portion of an integrated project. It misused the allowed without review exemption to evade substantial standards and it adopted conclusory findings on scenic road character impacts that were all stemming from the incorrect maintenance framing of what the decision itself acknowledges is new transmission construction. For any of these reasons, remand is required and for all three remand is unavoidable. Thank you. >> Thank you. Uh we have reached almost the 15 minutes for petitioners oral argument. So we'll give both petitioners 2 minutes for your rebuttal and we'll extend the intervenor and respondents um by four minutes also. So if you have more things to say we can continue. Intervener I think you're beginning. So please state your name for the record and begin. >> Thank you board chair. Um may I please the board I send Gutierrez for intervenor respondent Portland General Electric Company. As I stated previously, I will be handling the first uh the first 10 minutes or or 12 minutes now for addressing SSR's assignments of error and Mr. Hugle is going to address the assignments of error raised by um Miss Bartholomew. Uh and similar to Mr. Hathaway, I will focus my argument on the first three assignments of error. Um, and I unless the court has any questions, I'm happy to address the fourth assignment of error, which is thoroughly briefed in our in our brief. Um, the first three assignments of error for SSR's petition for review can really be collapsed into one um assignment of error, but there's two components to it. The first part is this allegation that we that the hearings officer misconstrued the applicable ordinance. And then the second real big part of the assignment of error is that the findings are inadequate. Um and as explained in our brief, that just simply isn't the case here. Um Mr. SSR's argument at towards the end um says we we the board should remand in order for the hearings officer to explain how it how it's um >> harmonized the staff's finding that this would cause a significant visual impact with the requirement under the zoning ordinance. But what more is there left to explain? uh board member Wilson um I I agree that you know the on on the record on 45 the hearings officer went through very thoroughly and explained here's what the visual and aesthetics arguments are and let's talk about it. He argued uh he states it could be argued that clearing will create more panoramic views of the landscape. Therefore, the impact of the change is subjective depending on the viewer's preference for forested or open rural views. Drivers, he then goes on to say, drivers on Stafford Road will experience both views as they travel along the roadway. Uh, however, these facilities will not completely obscure such views such as a building or tall trees would. Therefore, the new poles and wires will consume a relatively small portion of the lower larger viewing shed in addition to the existing poles and power lines which are located at lower elevations already impact the views in this area. He also then uh says that although the evidence regarding some of these issues is conflicting, the hearings officer finds that the applicant's evidence is the most persuasive based on the discussion in this final order. He also adds that increasing views of the power lines and creating more open views for persons traveling on Southwest Stafford Road as well as for the owners and residents of some properties and that generally these transmission lines will be living in harmony with with the properties. What more is there left to explain about how a finding from the non-conforming use application which has a different test of no greater impact is harmonized with defining for this conditional use application that yes there's significant visual impact but under this board's decision in York I'm moving on to the second prong which is does that even if it's significant visual impact actually substantially limit impair or preclude the uses in the surrounding So um I I understand your point about that's the second second part of the analysis and if I understood intervenor petitioner correctly they were saying that doesn't really you know rebut or get rid of their first part of the finding. Um, and so it seems to me you're relying on that that paragraph to say this is why it doesn't impair or limit residential uses. And so does it specifically tie in those those definitions in that paragraph? I know when you get to the con his conclusion, he has some conclusory things that say that it does. So I know your your position is that it's good enough. Could you explain to me though exactly why it's good enough even though it doesn't specifically talk about limit or impair in that paragraph? >> Well, thank you. Thank you uh board member Wilson. If we go on further to I believe it's record on 46, he does provide the hearings officer does provide some more analysis and explanation regarding the limit and preclude/impare prong. He go he says in addition to the trans transmission lines existing in relative harmony with the uses throughout the region. He also adds the existing power lines impose some limits on agriculture uses in the area requiring that farm workers use caution when moving vehicles and equipment beneath the lines and precluding the planting of tall trees in close proximity to the lines. The additional power lines proposed with this project will not increase those impacts as they will be located at higher elevations than the existing power lines. Although the use will change the visual character of the area to some extent, those changes will not limit impair or preclude use of the surrounding properties for permitted uses. So that's at 45 to 46. So he does actually explain why the the again to the second prong the use is not substantially impaired. And really this uh SSR's argument really boils down to just the uh incorrect belief that significantly impacts equates to substantially impaired. But under the undisputed definitions, impair means to make worse. Impact means to have an effect on. So yes, you can have a significant effect on something, but that effect could be good or bad as the hearings officer lays out in the opinion. Yes, some drivers are going to see this view, others are going to see this view. Some are going to like this one, some are going to like that one. But that's different than substantially make worse. make to to impair is always to make worse. It's not a good thing. And so I once we really understand that argument and that belief then that I think SSR's assignments are very really far apart and there's nothing left for the hearings officer to explain and and what because of his already thorough explanation. >> Okay. Thank you. >> Thank you. Um, I also, uh, just want to make clear, I mean, I've touched on it, but the hearings officer at, um, on 45 really also explains he in terms of the prior finding, he says, however, as staff noted in the non-conforming use decision, the added high large diameter poles and additional wires are going to create a far more industrial aesthetic. Again, prong one. Um, and there's no dispute about the photos. But he goes on to say, but that's not the relevant test here. The the thing that the burden of proof that the applicant bears is to show compliance with the applicable approval criteria that it's not going to substantially impair. And here because of the reasons he's outlined he's finding that correctly found that just given all the evidence in the record that the applicant correctly sustained the b did sustain the burden of proof to show uh that it complies with 12303 any sort of greater adverse impact that's just not relevant here that's under the non-conforming use application that's 120 that's 1207 which is not an issue here Um and again there's no disagreement about this court's decision in York which outlooked at the same provision. Uh there's just a fundamental misunderstanding about um what that by the SSR about what that criteria actually requires. Um, let's see. Just making sure I've we've also thoroughly addressed in our brief just some of the mischaracterizations in terms of what the hearing officers did or did hearing officer did or did not find. And I just want to be very clear that at no point in the decision is there any finding by the hearings officer that the project is going to make worse or impair. There is findings about altering and visual impact but at no point in that entire decision is there anything about actually make the project making uh the area worse. Um and with that um like I said I we thoroughly addressed assignment of error 4 uh in our brief but if the court has any if the board has any other questions I'm happy to address them. If not, I'll turn it over to Mr. Mr. Hugle to address >> No questions from the board. Thank you. Uh, Council Hugall. >> Uh, thank you, Caleb Peele for Clakamus County. I'd just like to take a minute or two to address um, Commissioner Bartholomew's reply brief. Um, >> Bartholomew again argues that the county aired in characterizing the project as maintenance. The truth is that the findings use that phrase one time uh and it's immediately followed by and alteration at record 56. More importantly though, Bartholomew identifies no part of the decision that turns on that characterization. The failure to apply ZDIO 1000 is based on the conclusion that the project is a utility line, not that it is maintenance. On the utility line issue, Bartholomew appears to shift from the petition to the reply. It's no longer the project isn't a utility line. Now it's the county can't just exempt all utility lines from ZDO 1000. Of course, they don't get to make that change halfway through briefing. Even if they could, though, stripped of all the fake case citations in the petition for review, they provide no support for that argument. On the five-party IGA issue, Bartholomew doesn't actually address our response that their submittal to the hearings officer was untimely regardless of whether it constitutes evidence or argument or anything else. And in going on to argue that IGAs such as the five party constitute applicable approval criteria in their reply, in their corrected reply, and in their second corrected reply, Bartholomew cites another fake case. Friends of Stafford versus LCDC does not exist. This is despite the fact that at the start of their replies, they state that none of the relief sought depends on disputed authorities. They cannot help themselves. This is very frustrating for the county. We appreciate that Bartholomew has concerns about the decision, but they've made it very difficult for us to address those concerns. >> I have a I have a question for you. This is kind of a novel issue for the board to address and I'm curious what your um >> Thank you. >> your suggestion for the remedy for this type of uh briefing. >> I thank you uh board chairs mood. I was wondering this myself and I don't know if it is frustrating because in the case we cite the court was able to award attorney fees. The test for attorney fees at Luba is different, likely more stringent. I don't know if it is if if it is well, when someone is trying to demonstrate preservation, if they site a 500page span of the record, Luma won't hunt through it to decide what is preserved and what is not. uh maybe if a party can identify an AI generated case and a particular assignment of error or portion of an assignment of error, it is not then up to Luba and the parties to go through each case citation to decide which are real and which are fake. Maybe maybe that's not entirely analogous. That is that is and then you know >> so are you suggesting for once there's been an identification of a citation to an authority that does not exist what what do you think the board should do in that instance >> I think at that point uh I if if I maybe it's okay because if preservation is challenged in a response brief the petitioner has the opportunity to provide more specific citations in a reply brief I suppose and I guess if they can provide actual um uh case citations that do support the propositions that are ascribed in their reply brief, Luba could consider it. But then the damage is done. The county has had to go through and >> I think I I I find a challenge with the idea that we could have multiple rounds of briefing given our short statutory deadline. So we are considering what we should do in an instance like this and I appreciate you bringing it to the board's attention. And I think we could now thank you >> move on. Thank you. Um so for all the reasons we provided the board should deny um Bartholomew's assignments of air probably without much discussion unless there are questions uh or council for PGE has anything that they want to add. I'll seat our time to the board. >> Thank you. And you do still have a another five minutes if PGE wanted to provide any additional argument. >> Thank thank you board chair. On the last question, I I will add I think one of the things that Lubet could consider is like potentially striking portions of the brief that rely incorrectly on that sort of uh to not waste uh precious resources both for for Louva and but also for for the respondent having to answer and go through that. I think that that that's something that just based on my experience could potentially help in terms of easing some of the burden of having to go through and sift through which cases are applicable or not. So that's just that's just a suggestion. >> Appreciate that suggestion. Thank you. Anything else on the merits? >> No, unless the unless the board has any questions, I'm happy to answer them. But u thank you. Thank you for the opportunity to uh talk about this important case and the uh important project that's at issue below. Thank you. >> Thank you. Thank you for your argument. Uh we will return to petitioners. Each of you will have two minutes for your rebuttal and I think uh council Haway probably should go first. >> Thank you very much um uh for the opportunity to rebut. Uh I think for purposes of of argument with the time I have left based on um member Wilson's question and the um response by PG's attorney um it appears as though there's a disagreement about what finding is more significant than another finding and we find very significant the finding that I quoted in my earlier presentation where the hearings officer clearly found that this proposed project was going to increase the visual impact of views from budding homes along Stafford Road. The project was going to have significant visual impacts in comparison to PG's existing lines and would create a far more industrial aesthetic that was inconsistent with the current visual identity and character Stafford Road area. Those are very strong powerful findings about the effect that this project's going to have on the residences in the Stafford Road area. in the hearings officer clearly says that project's going to visually adversely impact residential views. So that's where we start and then we go to his definition of how he defined the terms and I know that uh we disagree with PGE on this point but his definitions are clear and if you apply those definitions to that key finding those findings I just mentioned he clearly defines substantial as being significantly greater and then he defines impair as make worse. If you apply those definitions to that finding that I'm just talking about, you can only reach one conclusion and that is this proposed project is going to uh impair substantially the visual identity and character of the Stafford Road area including the uses in Stafford Road which are these these residences. Now, the other argument is, and I think member Wilson brought this up, is that well, the hearings officer made another finding about, well, it's not that big a deal, but those findings don't specifically overcome this other finding that I'm talking about because those findings don't talk about the residential impact, the visual impact of residential uses. >> Thank you for that rebuttal. And we've reached two minutes. We'll go to petitioner Bartholomew. Two minutes for your rebuttal. >> Thank you. Um I um okay first I would just also add to Mr. Hathaway's comment that uh the very first primary use listed in our our FF5 zone is residential. So um in my brief I will just refer I I have a chart of what impacts this will have on residential usage. um as well as farming usage. Um so that's the first thing and the second thing is um just from a prosay perspective two years ago I started this process I didn't even know what a brief was. Okay like I have been on an L-shaped learning curve and this was submitted before I realized a lot of the sources are not reliable and I don't have access to legal resources and so I understand the predicament that you guys are in. I don't want to waste anyone's time on things that don't exist, I didn't I was not aware that those that was not a reliable source. So, to the extent that it caused anyone additional time, I I own up to that and I was not aware it was not a reliable source. Um, but that being said, I I also don't want to be shut out of this process because I'm not an attorney. And so it's like I I realize it puts you guys in a difficult position because I can't communicate sometimes the way that in legal ease and but it also I don't want to be shut out of the process. So I I I understand where everyone's coming from and I I'm not sure what the answer is other than my arguments most of them with the apart from the IG issue my arguments would really stand regardless of which references I used they were mostly grounded in what exactly the case this case presented. So, um, that was all I wanted to say about that. >> Okay. Thank you. Um, thank you for your perspective on that. Appreciate the limitations. Uh, the land use process and the luba appeal process is intended to be open and accessible. Um, so that is something we consider as well. So, that will conclude oral argument. The statutory due date for our decision is uh February 26th. In this appeal, we'll ask the parties to agree to an extension so that we issue our opinion no later than March 19th. Is that okay with these parties? >> We have no objection. >> No objection from PG. >> No objection.

Summary: Hi there, Petition Bartholomew. Are you planning to join by video or audio only today? You're muted if you're speaking. >> Okay. Thank you. Yes, I will. There we go. Okay. Hello everyone. This is the time set for oral argument in Bartholomew versus Clakamus County. Luba numbers 2025-073 and 074. I'm board chairs Moodia. Board members Wilson and Basham are also present today. And please do mute your audio when you're not speaking. That will help with our re…