OA 2025-027 Miller v. City of Maupin

OA 2025-027 Miller v. City of Maupin
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=qlBjSQroq-M). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Good morning. If council could come on screen if you have that ability, please. All right. Good morning. This is the time set for oral argument in luba number 2025-027, Miller versus the city of Min. I'm board chair Zamoodio. Present today are also board members Basham and Wilson. Uh please mute your audio when you're not speaking. Thank you. I see that you've already done that. I'm not aware of any pending motions um in this appeal. We do have a challenge to the jurisdiction of the board in the response brief which we will deal with in our final decision. Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes for your argument and may reserve up to five minutes for rebuttal, which is time to respond to the city's arguments. Did you want to save any time for rebuttal? >> Yes, I think I'd like to reserve four minutes. >> Okay. Uh I will keep track of time here and ask you also keep track of your own time and I'll let you know when you get into that rebuttal time. And then after you present your argument, the city will have an opportunity to present their argument and uh that will be the totality of the oral argument. So with that, petitioner, if you could please state your name for the record and begin. >> Sure. My name is Karen Miller and um I'd first like to thank the board for the opportunity to present and participate in this case and to apologize for the oversightes I've made that have caused you and your staff additional work. Uh here's just a brief history and overview. Petitioners appealing planning commission's decision to approve an after-the-act flood plane development permit for an RV park and adjacent subdivision located in the FEMA floodway of the Dishutes River and city council's upholding of that decision under local appeal. The case is a result of several years of land use actions related to these developments. Staff reports and recommendations provided by contract um contracted planners to this city decision makers were inaccurate and misleading. Planning commission did not fully understand their own local codes nor the state requirements and did not question those staff reports and recommendations. Decisions were made without required public hearings and development proceeded without the proper review and the associated flood plane development permit. The permit applicant was a city council member during this time and at the time of permit approval. Six months into construction and six months after respondent received direction and offers of assistance from Deanna Wright of the Department of Land Conservation and Development to establish the permit and review process for these developments. Respondent finally acknowledged the permit. Respondent had never processed a flood plane development permit. Although there is residential, private commercial, and city-owned commercial development in the FEMA floodway, planning commission had no experience or training in flood plane management, even though they are appointed as the uh administrator of the local flood plane ordinance. This authority includes granting or denying development permit applications prior to commencement of development in accordance with the title provisions. After multiple denials that a permit was required and that the land was even in the floodway, the same contracted city planner established a permit template which they provided to Mr. Miles without the knowledge, review or input of the planning commission. The completed application template was then provided to planning commission by the planner who recommended approval of the permit even though the information on the permit was incorrect and only one of the many supplemental requirements were included. requirements of MMC14 were not followed. The subject permit was approved administratively with no comment and no public hearing. Upon local appeal, the city council upheld the planning commission's decision. Of first concern is the lack of notification and public hearing requirement for planning commission's two meetings to review and approve the after the fact permit as required by OS 1977. >> [snorts] >> Approval of the permit was clearly a land use decision as defined by OS 197015. By establishing a flood hazard overlay district, Muffin's land use code MMC18 mandates compliance with the [snorts] requirements of the city's ordinance relating to flood areas in addition to requirements of the appropriate zone as specified in MMC18. In this case, the zone is RC recreation commercial. Although respondent ignored the requirements of OS 1977 797 and local code by approving the initial RV park plans in 2022 without a public hearing. They eventually acknowledged the permit requirement in June 2024 after earlier stating multiple times that it was not required for either development and after construction activities including installation of underground utilities for both developments were essentially complete. Basically, a respondent admitted their error in not requiring the permit initially and then denied any opportunity for public input just as they did in 2022. Respondents brief states that flood plane permit is ministerial in nature and is unrelated to any specific use of land. This is confusing and incorrect as the permit application itself as an extension of MMC14 requires specific identification of the development to include site plans and elevations, location of field placement, dimensions of proposed structures, location of facilities among many other requirements. However, none of these supplemental requirements were provided with the permit application. Of second and related concern is a lack of compliance with OS227, city planning and zoning. >> Just interrupt you for a moment. What land use regulation are you arguing as applied in the challenge decision? >> Uh MMC14. >> Okay. So, in your view, MMC 14 is a land use regulations defined by statute. Yes. >> Um the second concern relates to RS227 city planning and zoning. Like RS 197 797, RS227 requires public hearing for land use decisions and permit applications. It also requires that approval or denial of a discretionary permit application be related to the standards and criteria of the development ordinance and to the city's comprehensive plan. Respondent provided no decision document, no written findings or statements at all, let alone any that relate to the uh development ordinance or to the comprehensive plan. Had respondent complied with the provisions of this statute that do allow approval of the flood flood plane development permit without a public hearing. Review requirements and notifications were still required and the local appeal would have been uh denovo. It was misleading for the respondant to ask the petitioner to indicate the type of hearing they preferred. The statute dictates a denovo hearing with presentation of testimony, arguments, and evidence as would have been allowed with a hearing and not limited to the specific issues raised in the appeal. Instead, respondents limited respondent limited council's review of the permit approval to only those specific items noted on petitioner's written appeal of eight months prior and ignoring petitioners oral testimony. petitioners and other appellants rights were prejudiced by not allowing arguments, evidence and testimony related to the issue. A third concern is respondents determination of MMC 2.10.120 as the directive for local for the local appeal pro proceeding. This is the generic appeal citation for actions the planning actions of the planning commission at hearings. There was no hearing held for the flood plane permit review and approval. In addition, the three requirements for council's appeal review as cited here are number one, transcript of original hearing, number two, written findings of the planning commission, and three, the action taken by the planning commission. Two of these items don't exist. Respondent did not prepare a transcript and one was not requested from Zoom. [snorts] Alternately, meeting minutes could easily have been provided to the council, but respondent says they weren't. There are no written findings of the planning commission supporting this decision. The only action is a signature on the last page of the permit application and even this was not provided to council as confirmed by the respondent and is not part of the record. It was submitted by petitioner in the petition for review as as the required initial decision document. As council did not review the three requirements of this citation, their determination to uphold the permit approval under this directive is baseless and their findings are invalid. A fourth concern and related to the third concern respondent did not allow did not follow MMC 14 which prescribes an appeal process and required reviews for decisions specifically rated related to flood plane development. None of these required reviews were performed with no review or relation to the comprehensive plan. Petitioner and fellow appellants were expecting an appropriately thorough review after the non-public participation and essential non-review of planning commission. Petitioners and appellants rights were prejudiced by not holding the appropriate review and not allowing any public comments whatsoever during the review. The fifth concern is planning commission's approval and council's upholding of that approval without substantiating evidence of compliance to MMC14. The permit application itself is an extension of MMC14, a land use regulation as defined in OS1 197.015. The permit is required by local, state, and federal law to be approved prior to commencement of development. The permit was approved 6 months after commencement when development was substantially complete. Excavation and fill for underground utilities was done. Completion of the application itself by the developer was intentionally misleading, incorrect, and incomplete. As noted in the petition for review, this again was an effort to avoid a proper and thorough review. The developer and the contracted planner knew of the intentional misstatements and omissions as noted on the June 18th, 2024 staff report in the record. The petition for review notes the errors of the permit application itself in addition to other failures to comply with requirements of MMC14 regarding the water course alteration and review of other required permits. Both planning commission and city council failed to verify the most basic of information um which was the identification of land and land owners. Had planning commission reviewed only those two requirements along with the required site plans that were not provided, they would have seen that the final development did not match the plans they initially approved and that land transfers would be required for the two developments to match the final plans. Instead of planning commission performing a thorough review of the application and requirements or even a cursory review, respondents and contracted planner basically told the planning commission to approve the permit and they did. It appears that no review by the planning commission was facilitated because respondent withheld training and resources that would have allowed them to appropriately perform their reviews and duties related to flood plane management. And you're going into your rebuttal time. You're welcome to continue or you can reserve your time. >> I'm done. Thank you. >> Okay. Any questions from the board? >> No. All right. Uh thank you. You'll have your four minutes for rebuttal and we will turn to the attorney for the city for your argument. >> Good morning. Elise Kepki on behalf of respondent city of Mppen. Um, I'd like to begin by clarifying what's actually at issue before this board today because much of petitioner's briefing and argument [clears throat] has focused on the history of the development of the RV park. But the decision on appeal is not a development application for the RV park. The permanent issue is a flood plane development permit that authorized limited flood plane work uh specifically grading with no net fill. There was no specific development or building proposal include included with the application. It was a permit specifically for cut and fill activities. Despite what petitioner has argued today, the only decision before Luba is that city's council res city council's resolution of the petitioner's local appeal of that flood plane permit. The council's role did not include speculating about potential errors the planning commission might have made, but it was to review the specific errors that petitioner actually raised and to apply the city's code in resolving those issues. Arguments she could have made below but did not are outside the scope of that inquiry and are not appropriate before this board. As the party seeking review, petitioner carries the burden of demonstrating first that Luba has jurisdiction over this appeal and second that she preserved her arguments for review and she has done neither. So on the issue of jurisdiction, petitioner must establish that the challenge decision was a land use decision either because it implements statewide planning goals, a comprehensive plan provision or a land use regulation. And the petitioner did not really address this in her initial petition. She is now arguing that title 14 is a land use regulation. But the city disagrees. The applicable code provision that was applied is MMC14.10.120 and it does not meet the statutory definition of a land use regulation under OS 197.015 because it is not a zoning ordinance. It is not a land division ordinance and it does not implement the city's comprehensive plan. Mopin's development code is held entirely in title 18 which explicitly states that its purpose is to implement the city's comprehensive plan. Well, Title 14, by contrast, is just a technical safety ordinance um adopted to implement FEMA standards and mitigate flood hazards. Its stated purpose is simply to promote public health and safety, not to regulate land use or implement plan policies. And again, I'd highlight that language in uh title 18. The city knows how to make a a land use regulation implement the comprehensive plan if it desires to. It clearly did not intend title 14 to be a land use regulation. Um we've heard petitioner from today. We've heard from petitioner today that uh title 14 is a land use regulation because uh title 18 contains a flood hazard overlay, but nothing in that flood hazard overlay was triggered on review. Um turning to the text of that language, um the flood hazard district overlay is for building and structures hereafter erected. Um land enlarged, moved, and land hereafter used in the flood hazard district. Again, the scope of this permit application was just for fill and grading activities. There was no specific use of the land tied to this permit application that the city council was required to consider and therefore it was not implementing a land use regulation. [clears throat] Um as this board has previously held the critical inquiry is whether there's a clear connection between the ordinance and the implementation of a specific goal or plan provision and an indirect reference and an overlay um is not specific and not clear enough of a connection to tie the flood plane permit approval criteria to the city's comprehensive plan. Um therefore petitioner has not uh established her burden that Luba has jurisdiction and we would argue that the appeal should be dismissed on that basis alone. Um even if the board were to find that the permit review provision is a land use decision. Uh the city also argues that the decision on appeal falls squarely within the ministerial exception under OS 197.015. Uh under that applicable code the planning commission has no authority to exercise legal discretion or policy judgment. The ordinance sets out four objective requirements that an applica applicant must submit. Uh those are elevation data, flood proofing elevation, a professional engineer certification, and the description of any water course alteration to the extent that there is one. So the city's role under that provision is really limited to verifying that those items were submitted. And provision three expressly directs the city to rely on professional engineer certifications rather than making any technical determination itself. Once a qualified engineer provides that certification and the city's engineer concurs, the city's role is complete and the application must be approved as the city found um and city council's approval of um its resolution of petitioners local appeal. In other words, the ordinance does not give the city any authority to weigh competing evidence, impose conditions of approval, or substitute its own judgment for that of licensed third party engineers. It is a process of pure techn technical verification, not interpretation. And to be very clear, the application on review here again involved no specific development proposal, no variance application. They were only looking at those four factors and confirming compliance with those technical criteria. Um, so against that backdrop, if there are no questions, I will move into each assignment of error as they all fail on the merits regardless of the jurisdictional issues. And I'll address assignments of error one and two together because they're substantively similar um and they suffer from the same defect and that petitioner failed to preserve them below. As you know, Luba can only review arguments that were raised below with enough specificity to give the local decision maker an opportunity to respond. Petitioners now arguing at Luba for the first time that the city was required to follow specific statutory procedures under OS 197 and 227, that the permit cannot be processed administratively, that she was entitled to a denovo hearing on appeal. But none of those issues were raised during the local proceedings and the record reflects no argument implicit or explicit that could have possibly put the city on notice of any of these statutory obligations. Petitioner's preservation statement cites her local appeal generically. Um, but we've narrowed it down to a single comment which seems to be quote, "Had the planning commission provided a reasonable form for public comments, they may have better understood their duties and responsibilities as flood plan administrators." That statement cannot be understood to notify the city that the permit review was a land use decision, uh that the permit review was discretionary, that a hearing was legally required, or that any statute was violated. And that's because that is not what petitioner was arguing below. Not only did she not site a single statute, she now claims the city violated, she didn't use any of the operative terms in any of those statutes. Not even a passing reference to public hearing, land use decision, discretion, quasi judicial, denovo review, absolutely nothing that would put the city on notice of her argument so that it could address them at the city council level or prevent unfair surprise here at Luba. Her approach would have required the city council to manufacture arguments for her and then address them at the city council level. Um, and that's entirely inconsistent with the purpose of preservation. This board has also held that general opposition is not sufficient to establish a preservation of error and her statement about public comment is no more than general opposition to this the city's uh selected procedure. It require preservation requires identifying the specific legal error so that the city can correct it then and there before it reaches this board and petitioners did not even give the city that opportunity. Um so both assignments of one and two fail for lack of preservation but to the extent that Luba considers them I'll briefly touch on their merits. Um, as the first assignment, um, the city rests on its arguments today and in a brief regarding the ministerial nature of the flood plane permit review process. I'd only add that if the board does conclude that title 14 is a land use regulation, then OS 197.829 applies. And under that statute, Luba must affirm the city's interpretation of its flood plane ordinance unless it's contrary to state law or inconsistent with the code's text, purpose, or underlying policy. The city's interpreted that provision as establishing an administrative ministerial process that does not require quasi judicial review. Um, and that interpretation is pretty cleanly rooted in the text of the code, which sets forth again these four objective technical requirements that require no policy judgment. It's entirely reasonable that the city staff would deem this to require only an administrative review consistent with a ministerial exception. And as the court of appeals stated in Zipple versus Josephine County, the board must affirm the city's interpretation of its own code unless it is quote so wrong as to be beyond a colorable defense. Petitioner has not shown or argued today how the city's interpretation violates any statute or policy, nor how it's so untethered from the rest of the code as to be legally indefensible. She has stated her preference for a different procedure, but that is not enough to defeat the difference under OS 197.829. Um and moving to her arguments today invoking OS uh chapter 227. The jurisdictional hook there is 227.160 and that statute explicitly limits its scope to discretionary permits. As we've established this was a ministerial review and therefore that statute is not applicable here. Um finally for [clears throat] both assignments of error I'd add that the applicable standard of review requires petitioner to demonstrate prejudice to a substantial right. She has not done so. Um, as you know, the substantial rights contemplated by that statute are not the right to have the appeal resolved with your desired outcome. Um, but they're the right to an adequate opportunity to prepare and submit one's case, which petitioner has received. Uh, she received a full local appeal, uh, where she was able to identify any arguments and have the city council resolve each and every one of them individually, and she explicitly waved her right to a denovo hearing when given the choice, she selected an on the record hearing between the two. um nor has she identified any evidence that she was prevented from presenting or how the alleged outcome of the city council's decision would have been any different if they had followed her desired procedure. Um accordingly, her second assignment of error should be dismissed and then I'll briefly respond to what she's argued in her third assignment of error regarding MMC 2.10.120. Um petitioners reading rest on a misunderstanding of that statute. The code provides quote the council shall hold a hearing on the appealed action as set forth in the transcript written findings and the action taken. So in other words, the city council's review is limited to the planning commission's decision as reflected in the record below to the extent it's available and they cannot consider matters outside the record. But nothing in that code explicitly requires council members to review any one document, let alone minutes. That word does not appear in the statute. And so under standard rules of construction, petitioner cannot write in a word that she wishes with was there and then claim error based on its absence. Um, also petitioner has alleged today that council's review was useless because they didn't receive um or they didn't review the permit application itself, but that's just not true. If you look at the record, um the [clears throat] permit along with all the other materials reviewed by city council is in the record and it was available to city council for review. um petitioner has not offered any evidence to demonstrate what city council did or didn't specifically look at in reaching their decision and that argument is meritless. And then again um petitioner again has not demonstrated any prejudice to a substantial right here. She was provided her full 15 minutes for testimony. If there was something in the permit application itself or in the minutes that she felt was critical to the resolution of her appeal, she could have identified it then and she didn't. she hasn't identified it here today and accordingly this assignment of air should be dismissed. Addressing her arguments on the fourth um again I think this rests on a misreading of the mob and municipal code. She's argued that the city council was required to apply 11 substantive variance criteria to a flood plane permit appeal. Um but on its face this reading does not make sense. The provision at issue designates the city council as an appeal board with authority for two distinct actions. One is appeals and the second is variance applications. And I think her argument seems to conflate those two rules. Under subsection 1D, the code states, quote, in passing upon such applications, the city council shall consider end quote and enumerates 11 specific factors, but under the mop and municipal code, an individual does not apply for an appeal. They submit an appeal form such as the one petitioner submitted in this appeal. Um, and by contrast, a party seeking a variance submits a variance permit application. So the term applications in this provision can only be understood to apply to variance applications and that reading is further underscored by the rest of the code structure as subsection 1E incorporates these 11 factors by reference and gives the council the authority to attach conditions to a variance application based on those factors. And then subsection 2 explicitly governs conditions for variances and requires that subsection 1D factors be considered when granting conditions for variances. Accordingly, the city did not improperly construe its law as petitioner alleges and that assignment of error should be denied. Um, and then briefly, um, I see that I'm running close on time here. Assignment of error 5 is a substantial, uh, evidence challenge. I think we've briefed this pretty extensively. The city council's decision explains exactly what the city relied on. um professional engineer certifications, FEMA based modeling, the city engineers concurrence, all of it was reasonable to reach the decision that they reached and petitioner has not argued here um how you know didn't offer any competing testimony, didn't offer how a reasonable person in the city council's position position could not have reached that conclusion um and does not allege otherwise. So um if there are no further questions, I think the city will rest on >> No question from the board for the city. Thank you. So, we will return to petitioner for rebuttal and you'll have four minutes for your rebuttal. Petitioner, please go ahead. >> Great. Thank you. Um, I identified in my reply brief and um provided uh documentation to show that MMC14 is actually a land use uh regulation as defined by RS 197. Uh the the specific language in the um mop code 1830.10 regarding the overlay district specifically says buildings and structures hereafter structurally altered land uh shall comply with the requirements of all city ordinances relating to flood areas in addition to the requirements for that zone. and that is identifying mop and code um 14 as an implementation of mopin code 18 and that clearly um defines it as a land Um just a little background on my on the city's communication with me which was very lacking about what what the definition of on the record and denovo meant. Uh when I asked the city they indicated that on the record meant any documents official documents so far that nothing new could be added. Um, at that time I did not understand that on the record meant only the documents that the city decided to present to council on the appeal. That was very very confusing, not clear and I think intentionally done so. Um, and the full 15 minutes that was mentioned for my testimony on the appeal was totally unexpected. The notice I received from the city for the appeal, when the appeal would be heard, specifically said that no testimony will be heard. I took that to mean that they would take my written my written appeal and do it themselves, that they would um that that would be the presentation of the appeal. I understood that to mean that I was not allowed to testify. There's nothing in mop and code that identifies uh uh local appeal proceedings. I don't know that they've had any or many. Um there's nothing in the code that identifies that. And there was no communication from the city to me on how the process worked and what would be expected and what would happen. So I'm just putting that out there. Um I think I'm done. Thank you. >> Thank you. uh both parties for your argument today. That will conclude oral argument. The statutory due date for our decision in this appeal is January 19th. Uh we'll ask that the parties agree to an extension so that we issue our opinion by February 2nd. Is that okay with these parties? >> Thank you. Okay. Well, thank you and uh

Summary: Good morning. If council could come on screen if you have that ability, please. All right. Good morning. This is the time set for oral argument in luba number 2025-027, Miller versus the city of Min. I'm board chair Zamoodio. Present today are also board members Basham and Wilson. Uh please mute your audio when you're not speaking. Thank you. I see that you've already done that. I'm not aware of any pending motions um in this appeal. We do have a challenge…


Oral Argument 2025-069 Nedonna Development, LLC v. City of Rockaway Beach
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=9-0jRLQTD2E). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Good morning. We'll get started in just a minute. I guess now it's that minute, less than a minute. Uh, good morning. This is the time set for Luba number 2025-069, Nadana Development LLC versus the city of Rockaway Beach. I'm board chair Zamoodio. Board member Basham is also present. Board member Wilson is not present and either will not participate in the decision or will watch the recording of the oral argument and participate. Please mute your audio when you're not speaking. That will help with our recording quality. And I'm not aware of any pending motions before the board in this matter. Anything bring to our attention? No, nothing from the parties. Thank you. Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> Uh, yes, please. I'd like to reserve 3 minutes. >> 3 minutes. Okay. And uh I'll keep track of time here, but ask you also keep track of your own time. And just note that the um watch or the timer that's on the screen is not exact. It's just there for reference. And uh respondent, city, and intervenor, you have a 15 minutes to share for your response. Have you decided how you'll share your time? >> Yes. Um I will the city will have 10 minutes and intervenor will have five. >> Great. Thanks so much. I will keep track of your time also but ask that you also uh be mindful of your own time. So with that uh petitioner please state your name for the record and begin. >> Uh I am Dean Alderman alter e m the attorney for the petitioner nad development. >> Go ahead. Right. Uh members of the board, this is a fairly straightforward uh issue, but with a weird procedural history. Uh the city approved phase two of this old PUD. Uh you remanded it. On remand, the city unanimously turned down the application to build phase 2. There are two really basic issues here. One of them is how to map a zone that is designed to protect wetlands called the SA zone. Uh and the other is when if at all does an approval expire under a poorly written condition of approval of a final plan. Let me talk about the zone boundaries first. First of all, in 2008 when the city approved this PUD, uh it found that the property contained 3.9 acres of R1 land, that's a residential zone that allows housing, and 2.33 acres of SA land. That stands for special area. It's a wetland zone that allows virtually nothing. The city had and still has a code provision that says when you want to develop something in the area of uh the wetland zone, the applicant shall go get a wetlands delineation and that will become the boundary. As I said, the city approved phase two. The applicant provided a delineation. The applicant proposed the 20 lots in phase two to be exactly where the city had approved of those 20 lots in 2008. There was no change to the plan other than rearranging the lots within that area. Uh uh Oregon Shores the intervenor here appealed the city's approval of that. Um you remanded the approval on two grounds. Uh, one of them was that you explained you had questions about where the SA zone was and how the city should apply a section 3.080 sub5 of its zoning ordinance. That's the one that talks about delineating wetlands. You asked, you told the city to address uh Oregon Shor's issue, quote, regarding conflict with the SA zone as mapped on the city zoning map or to adopt findings or interpretations explaining the city's apparent conclusion that the modified phase 2 approval is consistent with the SA zone. The city agrees, finding number seven on page seven of its decision, it agrees that you asked it to adopt findings that rely on the comprehensive plan and the 1992 zoning map, which is the most recent zoning map the city has to determine how to apply that section. That's the only mention of 3.080 sub5 in the findings. the city ignored your entire direction beyond that one passing reference. Uh instead of trying to reconcile its 90 its 92 zoning map with the property, it said we will ignore completely our 92 zoning map. We will follow somebody else's zoning map that wasn't created until 2015. In this case, the Tulma County GIS system. We will ignore our final decision that the PUD contains 3.9 acres of R1 land and 2.33 acres of SA land. Instead, we will change the zone to say it contains 4.8 acres of SA and only 1.4 acres of R1. That's important because that has a huge effect on the density of the project and how many lots can be built. And finally, it it said or didn't say it simply ignored your direction for it to figure out what its code section 3.080 sub5 meant. It doesn't refer to that. It doesn't describe how the process in its code for setting the boundaries of the wetland zone should be applied here. It I don't want to be crude, but basically the city blew you off in your direction on this on this assignment of error. Um, at a minimum on remand, the city needs to adopt findings that respond to your actual instructions on how to apply 3.080 sub5. It needs to figure out how to apply its official zoning map instead of adopting a zoning map of somebody else that looks nothing like the city's official zoning map in a way that's consistent with its past decisions that specified the size of these two zones down to a hundth of an acre. Instead, it's adopted a decision that makes about oh eight or 10 lots illegal, eight or 10 houses illegal by putting them in a zone in its wetland zone even though they're not actually in a wetland. That's that's in brief our first assignment of error. The city needs to deal with the fact that it's made a decision not based on its code, not based on its zoning map, not based on its past decisions. It's simply ignored all of that in order, we think, to come to a conclusion that's politically correct inside the city. On the second assignment of error here also, the city pretty much ignored your instructions on remat. Uh the question here is how to interpret a condition of approval of the original PUD and of the approval to phase the PUD in two sections where the condition was in a section called final plat. And it read I quote the developer shall complete the improvements within one year of preliminary plan approval. The word plan is important. Unless an extension is granted by the city to complete the improvements. What the city granted was a deferral. The city said, "Now that you're doing this in phases, we want you to build very logically all the phase one improvements. We also want you to build a specified portion of the phase 2 improvements, streets, uh utilities. I think the phase 2 lots are all stubbed out for utilities already. The applicant did that 15 years ago. uh it didn't put any time limit on that. The city on remand said even though that time limit in the condition says you have to complete these improvements within a year of prel prelim pre preliminary plan approval and even though we have already given you the final plan approval for the PUD and even though you haven't up until this proceeding applied for a preliminary plan approval for phase two. We're going to say you should have built these improvements before you had even applied for permission to do the subdivision. That one, it makes no sense. Two, it can't be right. Three, it's the city doing violence to its code. It's confusing plans and plats. In order to make its findings work, it had to say, "We're going to pretend that tentative and final are the same thing, and they aren't." And it ignored your direction to evaluate how section 10.0501 and two of the code meant it. it quoted it and then otherwise it ignored you. I won't spend a lot of time on the third assignment of error. It's pretty straightforward. Uh we raised that mainly because since the city chose to change its zone from its zoning map to somebody else's zoning map at the end of this process on remand. Uh we need to preserve our argument that it doesn't make a difference because it approved 28 lots for this project. we will put the 28 lots wherever the city wants us to put the 28 lots but it can't go back and retroactively try to attack its 2008 decision which is exactly what it has >> Any questions from the board? Uh board >> Mr. Is the PUB designation a zone and underline overlay zone of some kind in the city scheme? >> The city was not quite clear about it. I think the best answer is that it is an overlay to whatever is underneath it, but it allows for certain it allows spreading out uses that otherwise would be constrained to lot size and areas. Our view is that once the city designated the entire parcel as a PUD that it gave the flexibility to the applicant to put the 28 approved lots wherever the applicant wanted subject to the city's approval but that to that extent especially because of the specific language that says you can have single family housing in a PUD. It overrode the restriction of the SA zone as long as the total density is not exceeded. I Okay, now I think I'm confused by if the PUD is an overlay but the underlying SA zone still applies, how then what is the relationship between that PD designation and the SA zone designation? >> Right. Uh let's suppose uh Chair Zumidio that this property consisted of two parcels. One of them was entirely SA and one was entirely R1 and they were being developed separately. The city would very reasonably say you get however many units are in the R1 that you get allowed take it divide by 5,000 square ft I think is the number. That's how many units you get. In the SA you can have recreational facilities of some kind but you don't get any housing. When this our view is that when the city said the SA and PUB together is exactly this s this much SA this much P this much R1 and your total density is limited to 28 units it's actually higher we didn't propose it to maximum density we can put those wherever we want inside the zone subject to the city's approval of the specific plan in this case we quite reasonably back in 2008 it wasn't We propose putting all of the housing in areas that were outside the wetlands uh to somewhat less than the maximum density on lots that are smaller than the minimum requirement in R1 because we were able to count the rest of the R1 and SA land together. The city made a specific finding on how much there was, which has never been challenged until until this until the prior appeal. Actually, >> was there a determination in the 2008 decision where the boundary of the R1 and the SA zones is on this particular property? >> As far as we know, records are incomplete. There was no specific determination. Uh the areas involved seem to follow the areas of the wetlands delineation that was submitted in 2008. >> Okay. Thank you. And you'll have your full three minutes for rebuttal unless there's further questions from the board. >> Okay. So we'll turn to the city for your response. Uh please state your name for the record and begin. >> Certainly. Good morning. My name is Lori Cooper. I'm an attorney with the local government law group and I'm representing the city of Rockaway Beach. The city's decision on this application is supported by substantial evidence in the record and responds directly to the questions and issues presented on remand by this board. With respect to assignment of error number one, the city that the city errored in how it identified the essay, the location of the essay zone, the city had thoroughly reviewed the administrative record as well as testimony and argument presented on the underlying and present appeal and reasonably determined that the phase 2 lots proposed for development are within the SA areas and as a result phase 2 application was denied since the SA zone does not permit residential development. With respect to assignment of error number two that the final PUB plan approval did not expire in 2009, the city found that condition number one, which required all improvements to be completed within one year, applied to the 2008 approval. And since those improvements were not completed, the final PUD plan expired in 2009. This is just summary, by the way. I'm going to get into more details in a second. With respect to assignment of error number three, that residential uses are allowed in the SA zone. The petitioner failed to preserve this argument because it was not re raised on the appeal below or mentioned in the board's remand. But even if Luba finds that this issue is preserved, uh the city's decision is supported by substantial evidence in his conclusion that the PUD designation did not amend or change those zone boundaries. So turning now to a little bit more detail on those arguments, uh regarding assignment of error number one that the city errored in how it identified the SA zone. Um all the city did in this case was try to follow Luba's direction and Luba had concluded that the SA is a base zone and so the city followed the board's direction precisely on that issue and sought to answer this question where is the SA zone located on the subject property. So first of all what the city did it it it reviewed the 2008 record and the present application to map to try to figure out precisely where those boundaries were and as Mr. Alman mentioned the records weren't great um from 2008, but the city did try to figure figure this out. Contrary to petitioner's inaccurate assertion that the respondent gave no weight at all to its final determination in 2008, the city in fact reviewed the entirety of the record and uh to adopt pertinent findings on this issue. And after performing a comprehensive review into the history of this application, the city found that it could not rely solely on that original PUD decision because in 2008, the planning commission did not specify the physical location of zone boundaries, nor did they reference a zoning map to make that determination. So the city couldn't rely on the final approval of the PUD, the 2008 approval and tenative approval of phase one of the PUD to demonstrate exactly where those boundaries were. These are reasonable findings based on the record and are issued in in conformance with Luba's express direction um in that remand and there's no conflicting evidence on this point. Petitioner is incorrect that the city is quote collater collaterally attacking its own 2008 decision. The city has not revised or amended that 2008 decision in any way and instead the city thoroughly and reasonably reviewed the record to come to a very clear and obvious conclusion based on that 2008 record that the planning commission and the city council failed to map that essay zone against the subject property in 2008. The property was mapped accurately uh in this current application. Um, pursuant to the board's remand, the city reviewed and analyzed accurate, up-to-date zoning information to deter to determine where the SA zone boundary is located on this property. Um, as mentioned, the comprehensive plan and zoning map are old. They have not been updated since 1992 and thus do not reflect zoning amendments since that time. And despite this outdated information, the city nevertheless attempted to overlay that 199 1992 map against this property to answer the questions related to the SA zone. So, Mr. Altterman had indicated that the city didn't follow the board's direction and didn't try to do that. Well, the city did try to use that 19 1992 map and those maps were just not adequate to accurately assess the zoning designations on this property. So, what the city did was was turn to its most reliable consistent source of zoning information for city property that it's been using, and that's a Tamok County GIS map. All zoning changes from 1992 through 2015 are reflected on this map and it provides parcel specific zoning information and this maps public has been publicly available on the city's website for quite some time. um without allegible accurate representation of zone boundaries for this property, the city believes reliance on this GIS tool is reasonable and appropriate to answer the present question as to where the essay zone is on the subject property. And no other applicable city zoning map or any other evidence presented conflicts with this information. So using the best available data, the city found that the uh the proposed phase 2 lots are located within areas mapped as SA wetland and because that zone does not permit residential development, this application was denied. um petitioner raises a new argument that the city failed to analyze whether or how the PUD designation impacts the analysis of where the essay zone is located on the property and the city maintains as I mentioned previously the city maintains this wasn't preserved this issue but in case the board does find it's preserved um the city did expressly find that this PUD overlay designation did not amend or change the location of any zone boundary lines and this is consistent with the code language and and actions of the city council in 2008. Regardless of the arguable inadequacies of the 2008 process, petitioner's argument does not answer the question presented on remand to the city and what zone are the phase 2 lots located. In other words, the PUD the PUD designation or lack thereof in this instant does not provide any answer or clarification to this mapping question. Turning to assignment of error number two that the uh final plan approval did not expire 2009. Luba clarified some critical procedural facts in this remand which the city adhered to and incorporated within its final decision in this application. First, Luba clarified that the planning commission when it originally approved the modification and final PUD plan in 2008 may possibly have aired in failing to require that the applicant submit a development schedule when proposing phase development and in failing to impose a specific deadline on phase development as required by the city development code. The city agrees with Luba's understanding of this 2008 process at decision whereby the applicant failed to propose a schedule for each phase when seeking modification of the original one-phase preliminary PUD approval and accordingly the city approved the modification and final PUD plan without such a schedule. The city further agrees with Luba's conclusion on remand that if such errors were made in the 2008 PU decision PUD decision they then they cannot be remedied in appeal of the present decision because the 2008 PU decision is final and not subject to LUBA's review and the final order in this application before us today reflects this reality. The the 2008 PU PUD decision is treated as final and it cannot be remedied at this point. Accordingly, the city reviewed the 2008 decision record to determine how best to reasonably interpret condition of approval number one, a 2008 condition of approval number one. Um, and that is precisely what Luba requested in its remand. The city intended the condition to apply to both phases. Therefore, the city found that the PUD has expired for failure to complete all those phase 2 improvements with one within one year of preliminary PUB appro approval. And these findings and conclusions were included in the final order for the application at issue here. Finally, assignment of error number three as that's about single residential uh development being allowed in the SA zone. As stated previously, we don't think this issue has been preserved. But even if it has, um there's no language in the Rockaway Beach zoning ordinance that authorizes development in SA zone. And in fact, um, the zoning ordinance does not specify or provide any clarity on what the PUD what the PUD designation actually does. In practice, at most, the PUD designation may simply be an administrative tool to identify what lands are bound by a PUD decision. The city would look to that PUD decision to determine what applicable standards have been approved. So, you know, based on this language, I mean, this is critical to understanding necessary limitations or allowances in a PUB overlay. And why would a parent zone designation be required unless a parent zone standards like prohibited uses or density, etc. Why would those be required unless they applied to that PUD area? The PUD designation does not override the parent zones permissions or limitations. So based on this plain language of the city's code as well as thorough review of the 2008 decisions, the city reasonably found that approval of the PUD application and the PUD overlay designation did not amend nor change location of any zone boundary lines. This critical question presented to the city and remand was identified with particularity where the where the SA zone boundary lies on the property to determine whether those phase 2 lots could be developed in accordance with the zones limitations and identification of the PU PUD designation here. Even if the planning commission and city council in 2008 failed to specify uh the PUD designated area with the essay zone on there doesn't doesn't answer any of these questions. So ultimately, regardless of whether petitioner is correct on this point, the question of where phase 2 lots are located is still the most important question to answer. And that's because the essay zone is a base zone as Luba stated in its remand with its own development standards and limitations. So to conclude, the city's decision is supported by a substantial evidence in the record and responds directly to the questions and issues presented on remand by the board. Uh and I welcome any questions. Thank you. No questions from the board for the city. We'll turn to intervenor for their argument. >> Thank you, Eric Rristen, on behalf of Interveners, Oregon Shores Conservation Coalition and North Coast Communities for Watershed Protection. Uh the primary issue I want to focus on is what we think is uh petitioners total failure to challenge each of the city's bases for denial. Uh like we've talked about the city had two bases for denial here that stem from the two assignments of error that Luba remanded in the prior appeal. Those are first uh that the development was proposed within the SA zone which doesn't allow residential development and second that that timing condition of approval from 2008 caused those earlier approvals to expire since the improvements for phase 2 were not made within a year. Uh we think that petitioner failed to state a case for remand or reversal regarding that second basis for denial in its petition for review. Um petitioner in its opening argument here just added uh some new arguments and actually started to talk about the condition of approval one uh for the first time here at argument which is pretty clearly not allowed under Lewis president. But if you read the petition for review uh it doesn't really talk about condition of approval one at all. The second assignment of error, which is maybe [snorts] the assignment of error that gets the closest to that basis for the city, not city's denial, focuses instead on a couple of Rockaway Beach ordinances that are not actually relevant to the city's findings. They're not in the city's findings. We haven't argued, nor has the city argued that they were controlling here. Um, I I think if you you really read that second assignment of error uh and read it closely and then read it compared to the city's findings on that actual basis for denial, you'll see that there's just a total mismatch and um petitioner really fails to get at the actual reasoning that was in the city's findings regarding interpreting condition of approval one. And we think that Ludas case law is clear that in order to challenge a local government's basis for denial, you know, the petitioner actually has to address the local government's actual reasoning and point to the relevant approval standards or local enactments. Uh, which is not a particularly high bar, but we think the petition for review really fails to do that here by not even mentioning condition of approval one or getting at the actual reasoning in these city's interpretation. Um, and for that reason, uh, because this issue is also an independent basis for the city's denial, uh, we think that mistake is fatal to the petition for review and that Luba really doesn't need to look any further Um, turning to the first assignment of error, uh, I want to make a quick point, uh, which is that re regardless of the city's reliance on the online mapping tool, the city showed in its findings that the property is within the SA zone on its 1992 comprehensive plan map. Uh, that's shown really clearly in the maps that are created by the city that overlay the property boundaries onto that uh, comprehensive plan map. We included a copy of that map in our brief. Apologies, I I re I referenced red squares on the map and then printed the brief in black and white, but hopefully the maps are are still clear. Um so we think that because that property the city showed the property is clearly within the essay zone you know without even using the online map that uh the city's interpretation of that uh finding was reasonable and should be upheld even if the board has concerns about the use of the more detailed online maps that petitioner focuses on in its arguments. Finally, uh, on the third assignment of error, really quickly, uh, Luba remanded the two assignments of air in the previous appeal to the city to consider with pretty specific instructions. A petitioner chose not to participate in that prior appeal and now makes arguments that could have been raised in that case regarding wholly new provisions of the Rockway Beach zoning ordinance that were outside the scope of Luba's remand, which the city limited arguments to. Uh for those reasons, we think that the arguments in the third assignment of air are are totally foreclosed and not preserved here. Um if there's no further questions, I will wrap up here. >> Thank you. No questions from the board. So we will return to petitioner uh for your three minutes for rebuttal. >> Right. Thank you, Chair Zumio. To take these points really quickly. First, despite the argument of the city, it did in fact ignore its zoning map. its conclusion that the Tamok County zoning map controls the city zoning uh is at variance with its past decisions uh and with its own zoning map. The shapes are nowhere near the same and under the city's interpretation uh 6 8 10 houses in the area are all inside the prohibited wetland zone. If the city is arguing that the PUD approval itself has expired, which is what I heard council say, then it's also making every single house on those lots illegal, which seems very inconsistent because they're all on substandard lots. That that is not a rational decision. Uh with regard to preservation of issue number three, to respond to Mr. Christristen's point. When this appeal went up the first time, this property in the city's view was properly zoned to allow the development. Only after the appeal came back did the city decide the zoning boundaries were something other than how the city had evaluated the first time. That's an issue, if you will, that the city created on on remand by changing the zoning of the property to follow Toma County's online map. uh whether it is preserved or not the first time around it's based on a new fact that didn't exist in the first appeal. Uh otherwise we think we have been very clear on our appeal. The city has to take account of its past decisions. It didn't do that. The city has to take account of its own zoning map. It chose to ignore that and adopted something with a different shape. The past decision took the area of the two zones down actually to an exact number of square feet. record 1444. The city doesn't deal with that. Uh for all of those reasons, Luba should remand this decision to the city to adopt findings that reflect the facts as they are and not as the city would like them to be. Thank you. >> Thank you. That will conclude oral argument. The statutory due date for our decision in this appeal is January 26th. will ask that the parties agree to an extension so that we issue our opinion no later than February 9th. Is that okay with these parties?

Summary: Good morning. We'll get started in just a minute. I guess now it's that minute, less than a minute. Uh, good morning. This is the time set for Luba number 2025-069, Nadana Development LLC versus the city of Rockaway Beach. I'm board chair Zamoodio. Board member Basham is also present. Board member Wilson is not present and either will not participate in the decision or will watch the recording of the oral argument and participate. Please mute your audio wh…


Oral Argument 2025-026 Morin et al v. City of Seaside
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=riVzRZPHdDI). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

So good morning. This is the time set for oral argument in luba number 2025-026 versus the city of side. I am board chairs Moodio. Board member Wilson is also present. Board member Basham is not present and will not be participating in final decision in this appeal. Um parties please mute your audio when you're not speaking. and that helps with our recording quality. And I'm not aware of any pending motions or matters in this appeal. Is there anything the >> No, ma'am. Sure. >> Thank you. Um oral argument is a total of 30 minutes. Petitioner, you have a total of 15 minutes. May reserve up to five minutes for rebuttal. Would you like to reserve any time? And if so, how much? >> Uh five minutes, please. >> Okay. And I will keep track of time here and also ask that you keep track of your own time. And just to note the clock on the screen is not keeping exact time and uh intervenor will have a total of 15 minutes for their response. So with that petitioner please state your name for >> Good morning. For the record my name is Zach McGee and I represent petitioners Le and Sandy Morren. Uh this case involves a tenative approval of a 15 lot subdivision in the city of Seaside and a variance to allow an overlength culde-sac to serve as a site's sole access. Uh however, the application was void under OS 2278 months before the city made its decision because the applicant had been notified of a missing alternate su sewer plan and failed to provide the plan or notice that it would would not be provided within 181 days of filing the application. In addition, the city improperly deferred approval of the applicant's alternate sewer plan, an alternate storm water plan to appoint after tenative plan approval without the required finding of feasibility. Uh failed to require the applicant to prepare an erosion control plan or hazard mitigation plan despite the requirements for the same in both the zoning code and city subdivision standards. Failed to require a street connection between the subject property and forest drive despite plane connection in the plat of Vista Ridge. and improperly granted a variance to the applicant to permit an overlength culde-sac based on the applicant's design preference. Returning to the first assignment, the city's error in approving a void application is jurisdictional and warrants reversal of the decision. O RS227178 provides that where a local government provides an applicant with notice of incomplete land use application, the application becomes void on the 181st day after submission if the applicant has not submitted either all of the missing information, some of the missing information with notice that no other missing information will be provided or written notice that none of the missing information will be provided. In this case, the applicant was notified of the missing information in February of 2024, but took none of the required steps. Instead, submitted some of the missing information, but refused to provide an alternate sewer plan that had been requested and never advised the city that no further information would be submitted. As a result, the application became void on August 27th, 2024, the 181st day after the submission of the application. As the application was void on that date, the city aired by later approving the void application. >> So, Mr. Mickey, what what I'm a little confused exactly what happened with the how they processed this this application. Um, when did the 120day clock start running? >> I'm sorry. >> When did the 120day clock start running for the city to make a decision on this? Well, in this case, the city actually um started processing the application or deemed the application uh complete in November of 2024, which is several months after the 181st day. >> So, there were no because I'm looking at that, you cited that in the record. I think it's in the staff report to the city council. Um there were no like extensions before that that So, the clock really didn't start running until November. >> That's correct. And in this case, um, with regard to missing information, there's no there's no real option to extend that time frame, uh, for the submission of the missing information. You either put put it in within 180 days or it's you're done, >> right? Yeah. No, I wasn't suggesting that. I was wondering if maybe the 120day clock had been extended a few times and they hadn't mentioned that in the staff report, but it sounds like that's not the case. >> That's not the case. They considered, I think, November 13th to be the >> Okay. So, but the but the city was sort of working on the application right before November or did they not really start processing it till November? >> I don't believe there were any kind of hearing notices or anything like that that went out prior to that point. So, I think that that was the point at which the the application got thrown. >> Okay. Thank you. Uh turning to the second assignment of error, the applicant's failure to provide an alternate sewer plan also substantively impacted the application uh because the applicant failed to demonstrate that its proposed sanitary sewer connection was feasible. Uh the city's subdivision and land partitioning ordinances require subdivisions to be connected to the city's sewer system subject to capacity limitations. In this case, the applicant proposed to connect a se to a section of the city sanitary sewer that has no capacity to receive additional sanitary flows due to due to an over capacity pump station on a pump station. Uh city engineer determined that it was not in the public interest to allow the plan connection and required an alternate plan and the applicant flatly refused. Instead of denying the application, the city attempted to to defer compliance with the criteria by adopting condition two, which required the applicant to develop an alternate sewer sewage plan after tenative approval. However, since there was no preliminary finding and no basis for finding of feasibility, uh that condition cannot be a substitute for the required finding of compliance. Moreover, since the city's condition allows the discretionary evaluation of the alternate alternate plan to take place outside the process, it is an improper deferral under RE and remand is warranted on that basis. Uh the same is true with regard to the sew uh storm sewer for the subject property. Again the um city determined that the uh applicants propose storm sewer is now sufficient for proposal that the proposes to discharge the water from the houses to the street but didn't provide a required detailed storm sewer plan for conveyance of the the flows thereafter. Again, the city tries to address this issue by opposing a condition, which is condition three um to require the applicant to provide the required study after the tenative approval process, but doesn't make a baseline finding a feasibility and it doesn't um provide the same participatory rights and deferred process later. Uh it's also an improper deferral and a Uh turning to the third assignment, city also aired by approving a subdivision of a large unstable land mass without the required grading and erosion control plan or hazard mitigation plan. Uh city zoning code requires um uh these kinds of plans, hazard mitigation plan and grading and erosion control plan for subdivisions on slopes in excess of 15%. Um it's undisputed that the subject property exceeds that 15% slope. Um as [clears throat] the excuse me as the applicant doesn't meet the zone zoning code requirements, the tenative plan could not be approved. Um the applicant did provide a geo geological hazard analysis. The same wasn't sufficient to meet the minimum requirements for hazard mitigation plan. And again there was just a refusal to provide the erosion control plan. Um as the applicant's geotechnical study was insufficient to meet the minimum requirements for hazard mitigation plan and there was no erosion control plan should also be denied on that basis. >> Um regarding the the the geotech stuff and the grading plan it's reading the brief it's almost like y'all are talking about different codes and so if I understand uh intervenor they're saying that they don't have to do that at this stage and you're saying they do. So, can you explain to me why they are required to file both of the the HMP and the the grading and erosion control plan at this stage rather than a later stage? uh because there's an express requirement um in both the zoning code and subdivision uh code that says you need to write the hazard mitigation plan and the erosion control plan at the tenative phase because we're going to be conditioning the tenative phase on the recommendations in those plans and the improvements need to be developed before the final plat approval. And so um those require requirements are pretty clearly spelled out in the zoning ordinance itself and also in the uh um the uh subdivision land partitioning ordinance section 10 which basically says well actually which says um uh hazard mitigation plan needs to take place at the tenative level um where it's applicable. I uh I also had a hard time following because the party's arguments are so varied on this issue. Did the city make an express interpretation that those things were not required or are we only looking at what intervenor argues is an implied interpretation because looks like we're definitely going to have to look at if we get to these assignments of error what the code requires. So what did the city do with that? the the city actually doesn't make an express interpretation of any of the zoning ordinance requirements just not in there. So there's no basis for an implied interpretation uh with regard to that. >> Okay. So your position, your counterposition is there's not even an implied interpretation that these provisions don't apply at the tenative stage. >> That that's correct. >> Thank you. Um the proposed layout of the subdivision also violates the development plan of the subdivision as a whole by failing to provide a required street connection to Forest Drive. Uh the subdivision uh development area is track G in the larger Vista Ridge subdivision and the prior approval of that subdivision reserved an adjoining track E to provide a public road connection between track G and Forest Drive to the northeast. Uh section 33 of the city's subdivision and land partitioning ordinance states and I quote a land division whether by a subdivision creation of a street or partitioning shall conform to any development plans end quote. Uh the plat of Vista Ridge is a development plan and one which requires the applicant to at least stub out a street connection uh to Forest Drive at that location. as the applicant not only failed to provide this future connection but precluded the possibility of such a connection the city aired by approving the subdivision and finally with regard to the issue of a variance uh the city aired by approving an overlength culde-sac for hemlock court the applicant sole access road this issue is largely controlled by a prior luba case which is called petsowski I think >> and you're getting into your rebuttal time you're free to continue on but you can um do what you want with that. >> Just briefly, um, we cite in the brief Pscowski versus Clamoth County. We believe that controls the issue of the variance. In in essence, a variance is only, uh, appropriate where it's where it's required and where it's a choice. And in this case, the variance is very much the choice of the applicant. The applicant can develop the subdivision without the variance and without any impact. Thank you. Just real quick, you you you cited the case talking about how it's, you know, there's stringent requirements for variances, but do does the uh the city gets more deference on that since they're using since the city council gets foreigner on that are they bound by those really stringent requirements for variances or can they interpret it less stringently? city uses the traditional stringent um uh variance requirements in this code and there's no interpretation which which would suggest that the conditions are any less stringently applied. >> Okay. Thank you. >> Thank you. >> Thank you. And we'll turn to intervenor for argument. Thank you. >> Uh thank you chair Zoodio. Uh my name is Dean Alderman Alt RM. I'm appearing here as council for the intervenor uh Sunset Ridge LLC which is the applicant below. Um assignments of error one and two overlap to a great degree that the a petitioner's timeliness argument is based on their belief that the applicant didn't submit sewer and water plans. In order to prevail on that argument, they have to show four things as a chain. The first thing is that the city code requires the applicant to submit sewer plans with the application. They cite to no pro to don't provision that requires that. All they cite to is a memorandum from the city planner. That is not the same thing as a criterion. City planners can't adopt criteria. The second step is that the city has to identify the plans as a missing item. This one I will agree the city planner did identify the sewer and water sewer plans as a missing item in the incomplete list letter in March. The third step is that the applicant had to not have submitted plans within the 180 days. There they failed. The applicant's plan was a little different. know was let's fix the leaks in the existing sanitary sewer system which will provide the additional capacity to handle the sanitary sewage from this project. In any case, because the city's code doesn't say that having sewer capacity is a criterion, it doesn't matter. It may matter later on at the development stage. It's not a criterion for approving subdivisions. The fourth step is even if the planning director had the authority to impose the criterion. >> I' hate to interrupt you while you're on flow of your four steps. I imagine there's more than four steps, but thinking about the differences here of what the parties believe that the code requires. What I hear you saying is at the tenative stage, all that is required is showing that there can be a physical connection without there being any need to look into capacity. Is that what you're saying? >> That is essentially correct that the code isn't phrased actually in terms of saying that it is a criterion. It simply says if a sewer is available, the applicant needs to connect to it. And that's all the code says. And the facts here were that the sewer is not available at a particular pump station and that there's some infrastructure improvements that need to happen in order to allow capacity for this particular PUD. >> Kind of the the the facts are that a a physical sewer connection is available at the low end of the property. All of the sewage can easily go downhill and it is a reasonably steep hill. down is is gravity is the law can go down there. The pipes have the capacity to convey the sewer up to the point of the pump station that takes the sewage underneath the river and to the west side of the river. It is that pump station off the property that lacks capacity and that's what led the city engineer I think engineer to write his memo saying please don't allow any more development in this area. That brings up a moratorum question I may get to later, but that's what led the city engineer to that. It's not a standard from the code. >> Okay. Your position is what the code requires is to say if there is city sewer, the PD connect to it. >> Yes. Yes. That's all that's all the code says at the stage of a subdivision application. That standard may come in when somebody applies to build a house on one of the lots, but it doesn't come in at the stage of the subdivision. The fourth step, even if the city engineer or the city planner could impose the criteria, could impose an additional requirement that the applicant submit plans that the code doesn't require. Is did the city council wave that requirement? the city council can overrule the planning director. The code only says the city may require the plans. It doesn't say the city must require the plans. In this case, the planning commission and the city council both reviewed the application. Neither one required the applicant to submit the plans and therefore what the planning director may have said in a letter drops out of the picture. It is not a requirement. The city the city waved it all together. It's not in the code. The city I shouldn't say waved. I should say the city overruled the planning director. >> And I imagine you're going here eventually, but I'd like to go get there sooner. The first assignment of error and the petitioner's interpretation of what the statute requires. Um, your position as I understand it is, well, the facts as I understand them are that the interviewer respondent submitted some of the identified material identified incompleteness letter and said, "We think this is sufficient. This is adequate." And in your view, that's enough to satisfy the requirement to provide written notice that no more information will be provided. Am I summarizing that accurately or not? reasonably. Our our position is we actually submitted all of the evidence that was required, just that what we submitted for alternate sewer and water plans, not a code requirement, was different in form than what the city planner had wanted and that the city council didn't require it. As far as timeliness, we think our position is consistent with Luba's case law on completeness. Uh I think I get to it about pages 11, 12, and 13 of my brief. uh Smith versus City of Gearhart. Uh this board held that an applicant who said, "I plan to submit no additional documentation except coaster construction bid estimate from a building permit. My application is considered complete." That that was enough to cause the application to be complete. Um in Steuart versus Salem, uh the plaintiff relator wrote a letter that said, "Please consider my application complete by operation of law." that was held to be enough to be complete. >> If Oh, I'm sorry. Go ahead. >> No, go ahead. You might ask the same question I had in mind, but if not, I'll ask it after you. Go ahead. >> Thank you. Um, so I understand your argument that you think it became complete on July 25th. Um, and the first question is the first part of this question is you said that you sent an email to that effect saying this should be complete now, but I understand petition argue that that email is not in the record. And secondly, even if you thought it should be deemed complete there, is that what the city did? Because this the staff report to the city council says it wasn't deemed complete until November and they didn't start the 120day clock then. And finally, the last part to the question is you your brief says that it was deemed it was complete on July 25th and that the city adopted a finding to that effect. And I didn't where is that finding? >> Okay. Sorry, that was a compound question. >> Okay, that I didn't know. That I didn't know and didn't look at. I don't think I misstated that. But I'll tell you why. Whatever the date is, it isn't November. Because the statute says the application is deemed complete whenever the applicant submits the last bit of information. We didn't submit anything We didn't submit anything close to November 25th. The fact that the city may get around to writing letter that says we believe your application is complete. The date of the city's letter doesn't matter. What matters is the date of the submission. And July 25th is when we said we've submitted everything. We think we believe our application is complete. Uh and there is some process that is in the record from that point. So that that's when we believe we were complete. We don't think the city can or or the petitioners can say the city didn't recognize you as being complete until a date which was long after you submitted the last bit of information. That's not how the statute reads. The statute is based on when the applicant sends it in, not on when the city responds to it. >> So theoretically, you could have mandamus them at some point then, huh? >> Uh yes, actually. >> Okay. >> Uh but I mean I like Luba better than the court of appeals. >> Okay. All right. Thank you. Thank you for answering that compound question. >> Let's see. So that's that's completeness and I think that covers most or maybe all of your question is is embodied in that. >> Um I want to talk briefly about what I think has been perhaps a source of of investigation for the board. The difference between the hazard management plan and the grading and erosion control plan. Uh the code to me is pretty clear that an applicant for a subdivision approval should submit an hazard a hazard management plan if the slopes are greater than 15%. This applicant submitted that. Our brief explains where the plan is, what it's identified, how it deals with all of the elements that are supposed to be dealt with in a plan. The grading erosion control plan under the city's code comes in later when the applicant actually wants to start shoving dirt around to grade to excavate and so forth. And how we know that is from one of the code sections we cited which is 4.202 sub4 which says that the grading plan is reviewed not by the planning commission not by the city council but by the building department. That these aren't the people the people that the petitioners are appealing from aren't even the people at the city who are supposed to be looking at it. There's nothing they get to do with it. It gets reviewed by a completely different department. That's how the responsibilities assigned in the code. It's reviewed by the people who give out the permits for us to actually dig trenches and move dirt and build streets, not by the people who approve the plan of the subdivision. Uh on the issue of the culde-sac, which wraps up, I think the fourth and fifth assignments of error, first is it would be hard for the city to require us to build a street through a piece of property that the applicant doesn't own and that the city doesn't own either. Uh that that's a it's it's a legal impossibility for us to do that. B the petitioners have made a big thing about the fact that this is a a hazardous landslide mass. And the record is clear that to connect the road down to that stub requires going down a 20% slope which is way outside the standard for fire engines and fire protection. The city could reasonably make a policy decision. We're going to let you have an overlength culde-sac because that's a lot better than building a 20% road straight down a hill to end 20 ft away from an actual street. Uh third is there's no the houses still end up in the same place just the last part of it becomes a private driveway instead of a public street. There's no actual shortening of distance. All it would do to say make the culde-sac farther up the hill and run private driveways to the houses is to make it harder to provide fire protection for the houses. The city council could certainly have made a very reasonable policy decision to say we want a road that will support a fire engine to get as close as possible to the houses and the subdivision. Uh they made a decent decision. It's supported by evidence in the record uh and ask you to affirm the city council and deny the appeal. >> Thank you. Any further questions for a moment? Okay. Thank you for your argument. We will return to petitioner for rebuttal and you'll have two minutes for your rebuttal. >> Okay. Briefly, I'm just going to touch on a couple of things that I think would be helpful to know. One is there's an express requirement uh for capacity uh in section 43 subsection 5. Um yeah, all subdivisions and partitions within the city of women shall be connected to the sewer system where available and subject to capacity limitations. So that that's the requirement there. Um there was uh no alternate street plan that was submitted uh during the period when the record was held open. Um there was an additional study that was submitted with the um May uh submission, but it was submitted with a letter that said at the same time uh and we're also going to provide additional information. There's no letter in the record from the applicant that says um and we're not going to submit anything else. And so that that just simply never happened. Um, turning to the HMP and grading erosion control plan requirements, there's an express requirement in I sub2 that says that the erosion control plan uh shall be submitted in conjunction with the HMP. That didn't happen here. As a matter of fact, the applicant's geotechnical hazard report that was provided um uh uh actually says it's neither an erosion control plan nor is it a hazard man hazard mitigation plan. Um and then in terms of the legal impossibility argument, as we pointed out, uh we're not requiring the sub subdivider to try and punch a road through property he doesn't own. we can just stub out that street. Thank you. I think that's my time. >> That is Thank you for be Thank you for being mindful of your time and thank you to both parties for your argument today. That will conclude oral argument. The statutory due date for our decision in this appeal is February 18th and we'll ask that the parties agree to an extension so that we issue it by March 4th. Is that okay with these parties? >> No objection from petition. >> No objection from the intervenor. Thank you.

Summary: So good morning. This is the time set for oral argument in luba number 2025-026 versus the city of side. I am board chairs Moodio. Board member Wilson is also present. Board member Basham is not present and will not be participating in final decision in this appeal. Um parties please mute your audio when you're not speaking. and that helps with our recording quality. And I'm not aware of any pending motions or matters in this appeal. Is there anything the…