DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT v. CROOK COUNTY, LUBA No. 98-202 (Or. LUBA 10/8/1999), LUBA No. 98-202.
| Decision Date | 08 October 1999 |
| Docket Number | LUBA No. 98-202. |
| Parties | DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT, Petitioner, v. CROOK COUNTY, Respondent, and NORM CHADWICK, Intervenor-Respondent. |
| Court | Oregon Land Use Board of Appeals |
Petitioner appeals a decision by the Crook County Court approving a partition and two conditional use permits for nonfarm residences in the county's exclusive farm use (EFU) zone.
Norm Chadwick, the applicant below, moves to intervene on the side of respondent. There is no opposition to the motion, and it is allowed.
The subject parcel includes approximately 188 acres.1 In January 1997, the Crook County Court approved intervenor's application (1) to partition the 188 acres into two new nonfarm parcels of ten acres each and a remainder farm parcel of 168 acres and (2) for conditional use permits for a nonfarm dwelling on each of the two new nonfarm parcels. That decision was appealed to LUBA. After petitioner filed its petition for review, the parties stipulated to a voluntary remand. LUBA granted that voluntary remand in an unpublished opinion dated December 15, 1997.
Following LUBA`s remand, the county court considered the matter on September 23, 1998, and left the record open until October 7, 1998. On October 6, 1998, intervenor submitted a document entitled "Supplemental Burden of Proof Statement." Record 23-34. That document includes proposed findings of fact, and conclusions of law. That document was put into the form of a final decision and adopted by the Crook County Court on November 4, 1998. This appeal followed.
Petitioner argues that the only reason this matter was pending before the county court in the first place was because petitioner appealed the county's first decision to LUBA and that decision was remanded. Nevertheless, petitioner argues that the county did not give petitioner individual notice of the proceedings on remand. Petitioner argues that the county's failure to provide such notice constitutes procedural error and prejudiced petitioner's substantial rights.
As a result of the county's failure to provide notice, petitioner argues it was "unaware of the county's reconsideration of intervenor's application and was effectively prevented from participating in the remand proceedings." Petition for Review 4. Petitioner argues that, had it been given notice of the remand proceedings, "it would have presented evidence and argument to rebut the `Supplemental Burden of Proof Statement' submitted by intervenor." Id.
Intervenor argues that the county did provide notice of the hearing on remand.2 However, we do not understand intervenor to argue that either of the notices included in the record were provided to petitioner. Rather, intervenor argues that petitioner was not prejudiced by the county's failure to notify petitioner of the proceedings on remand.
"Any prejudice that [DLCD] may have incurred is cured by its opportunity to raise substantive issues on appeal, even though it was not a party to the proceedings below." Intervenor's Brief 1-2 (record citations omitted).
LUBA will reverse or remand a decision based on procedural error, where the procedural error results in prejudice to petitioner's substantial rights. ORS 197.835(9)(a)(B).3 Depending on the nature of the remand from LUBA, a local government may or may not be obligated to conduct an evidentiary hearing or allow the parties an opportunity to present legal argument. Gutoski v. Lane County, 155 Or App 369, 963 P2d 145 (1998). However, where the county elects to provide the opportunity for a hearing at which it accepts additional evidence and argument, all parties to the LUBA appeal that led to the remand must receive some form of individualized notice of the proceedings on remand. As far as we can tell, petitioner received no individualized notice of the proceedings on remand, either oral or written.
During the local proceedings intervenor submitted proposed findings of fact and conclusions of law and two large maps showing tax lots and topography.4 Those proposed findings of fact and conclusions of law constitute factual and legal argument to the county court and the maps were submitted to support the argument. Petitioner has a right to rebut the argument and evidence presented by intervenor during proceedings on remand. Caine v. Tillamook County, 25 Or LUBA 209, 214 (1993). The county's procedural error in failing to notify petitioner of its proceedings on remand resulted in petitioner not attending the hearing and not having the opportunity to rebut intervenor's evidence.
We reject intervenor's argument that we can assume that the county error resulted in no prejudice because petitioner did not participate during the initial hearings that led to the first LUBA appeal. Petitioner did participate by submitting written objections to the
proposal during the initial hearing. Supplemental Record 74-75. We cannot assume petitioner would not have appeared and presented additional oral or written argument and evidence, particularly where petitioner asserts otherwise. We also reject intervenor's suggestion that any error or prejudice is obviated by petitioner's right to appeal the decision on remand to LUBA. While we are not prepared to say the right to bring an appeal to LUBA could never cure procedural errors in a local land use proceedings, the right to bring this appeal does not cure the procedural error committed by the county here.
A party's right to present evidence and legal argument to a local decision maker and the party's right to challenge the local decision to LUBA, once it is made, are very different. Local decision makers have a significant amount of discretion in (1) weighing the evidence presented to them and finding facts and (2) interpreting and applying the applicable legal standards to those facts.5 Parties in local land use proceedings have the right to attempt to persuade the decision maker to adopt a party's view of what the relevant facts are, based on all of the evidence. Those parties also have a right to present argument concerning how the applicable law should be interpreted and applied to those relevant facts. These rights are a fundamental part of local land use hearings, and they are not replicated at LUBA.
The rights a party has in seeking LUBA review of a land use decision under ORS 197.835, once the decision is made, are much more circumscribed than the rights a party
enjoys during a local land use hearing.6 For example, the right to challenge the evidentiary basis of a decision...
To continue reading
Request your trial