HOMEBUILDERS ASSOCIATION OF METROPOLITAN PORTLAND v. CITY OF PORTLAND, LUBA No. 99-128 (Or. LUBA 3/1/2000)

• Decision Date: 01 March 2000
• Docket Number: LUBA No. 99-128.
• Parties: HOMEBUILDERS ASSOCIATION OF METROPOLITAN PORTLAND, Petitioner, v. CITY OF PORTLAND, Respondent.
• Court: Oregon Land Use Board of Appeals

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HOMEBUILDERS ASSOCIATION OF METROPOLITAN PORTLAND, Petitioner, v. CITY OF PORTLAND, Respondent.

LUBA No. 99-128.

Oregon Land Use Board of Appeals.

March 1, 2000.

Appeal from City of Portland.

Anthony J. Motschenbacher, Portland, filed the petition for review. With him on the brief was Nunn, Motschenbacher and Blattner. Anthony J. Motschenbacher and David J.

Hunnicutt, Tigard, argued on behalf of petitioner.

Peter A. Kasting, Portland, Senior Deputy City Attorney, filed the response brief and argued on behalf of respondent.

HOLSTUN, Board Member; BRIGGS, Board Member, participated in the decision.

AFFIRMED.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.

FINAL OPINION AND ORDER

Opinion by Holstun.

NATURE OF THE DECISION

Petitioner challenges Ordinance 173593, a legislative amendment to the city's acknowledged zoning ordinance. The challenged ordinance is referred to as the Base Zone Design Standards (BZDS) ordinance, and it adopts amendments to the city's zoning ordinance that restrict design elements of main entrances, garages and street-facing windows of certain residential structures.

FACTS

On October 23, 1998, the city provided notice of a public hearing before the planning commission to consider amendments to the city's zoning ordinance. The October 23, 1998 notice included the following description of the proposal:

"On November 24, 1998, the Planning Commission will hold a public hearing on proposed amendments to Title 33, Planning and Zoning. The proposal adds standards for houses, manufactured homes, duplexes and attached houses (rowhouses) in all zones that allow residential uses [except certain large-lot zones]. The proposed standards work together to strengthen the visual and physical connection between new residential development and the street. The proposals address:

"25ba The location and orientation of the main entrance.

"25ba Windows on the street-facing façade.

"25ba The width of an attached garage on the street-facing façade.

"25ba The location of an attached garage relative to the front wall of the residence.

"25ba Porches and balconies for rowhouses.

"25ba Driveway spacing for rowhouses.

"The Planning Commission's recommendation will be forwarded to City

Council." Record 1903.

At the conclusion of the November 24, 1998 planning commission hearing the written record was held open until November 30, 1998. After the planning commission public hearing was closed, the planning commission considered the proposal at subsequent meetings on December 8, 1998, December 15, 1998, and January 26, 1999. At its February 9, 1999 meeting, the planning commission directed planning staff to prepare final code language and to return with a revised purpose statement before forwarding the planning commission's recommendation to city council. At its March 23, 1999 meeting, the planning commission approved the revised purpose statement.

The planning commission's proposed zoning ordinance amendments were considered by the city council at a public hearing on June 30, 1999. That public hearing was continued to July 14, 1999. At its July 21, 1999 meeting, the city council approved the BZDS ordinance.

The BZDS ordinance imposes standards that effectively prohibit garage-dominated front façades and impose minimum standards for the area of the front façade that must be made up of windows and doors.¹

THIRD ASSIGNMENT OF ERROR

In 1997, the Oregon Legislature enacted HB 2515. HB 2515 was referred to the voters as Ballot Measure No. 56 (hereafter Measure 56). On November 3, 1998, the voters approved Measure 56, and it became law on December 3, 1998. Petitioner argues the city's decision in this appeal is "void" because the city failed to give written individual notice of hearing to all property owners who are entitled to such notice under section 3 of Measure 56.² Petition for Review 24.

The parties dispute whether the challenged decision "rezoned property," within the meaning of subsection 3(9) of Measure 56.³ Even if the BZDS ordinance does rezone property, within the meaning of subsection 3(9) of Measure 56, the city argues the notice required by subsection 3(4) of Measure 56 is notice of the first public hearing on the proposed legislation that was ultimately adopted by Ordinance 173593. According to the city, that hearing was the planning commission's November 24, 1998 public hearing, not the city council's June 30, 1999 public hearing. On November 24, 1998, Measure 56 was not yet in effect, and the city's failure to provide notice of that hearing in accordance with section 3(4) of Measure 56 was not error. Petitioner argues the city council's June 30, 1999 hearing was the first public hearing on Ordinance 173593. Petitioner contends that because Measure 56 came into effect well before the June 30, 1999 city council public hearing, subsection 3(4) of Measure 56 required notice of that hearing.

We first turn to a more fundamental threshold question that is not addressed by the parties. If subsection 3(4) of Measure 56 applies in the manner petitioner argues that it does,

ordinance will affect the permissible uses of your property and may reduce the value of your property."

"* * * * *

"(9) For purposes of [section 3 of Measure 56], property is rezoned when the city:

"(a) Changes the base zoning classification of the property; or

"(b) Adopts or amends an ordinance in a manner that limits or prohibits land uses previously allowed in the affected zone.

"* * * * *." (Emphases added.) the city should have mailed written notice to "the owner of each lot or parcel of property that the ordinance proposes to rezone" prior to the June 30, 1999 city council public hearing. The city admittedly did not do so. However, petitioner does not argue that it is a property owner entitled to receive notice under subsection 3(4) of Measure 56. Even if the city had given the mailed written notice that petitioner argues the city should have given in this case, petitioner does not argue that it would have been entitled to receive that notice. Moreover, petitioner was an active participant in this matter before the city at all levels. In fact petitioner submitted evidence and argument to the city council prior to and during its June 30, 1999 public hearing. In short, petitioner does not allege that its substantial rights were prejudiced in any way by the city's failure to provide mailed written notice of its June 30, 1999 public hearing under section 3(4) of Measure 56, even if such mailed written notice was required. For a "procedural error" to be reversible by LUBA, it must "[prejudice] the substantial rights of the petitioner." ORS 197.835(9)(a)(B). We have previously held that a local government's failure to provide notice of hearing required by local legislation constitutes a procedural error and could only provide a basis for reversal or remand if a petitioner's substantial rights were prejudiced by that failure. Woodstock Neigh. Assoc. v. City of Portland, 28 Or LUBA 146, 151 n 3 (1994); Apalategui v. Washington County, 14 Or LUBA 261, 267, rev'd in part on other grounds, 80 Or App 508, 723 P2d 1021 (1986). Similarly, in Lee v. City of Portland, 57 Or App 798, 806, 646 P2d 662 (1982), the Court of Appeals explained that failure to provide required "notice of any action affecting the livability of the neighborhood" to a neighborhood association as required by city code provides no basis for remand where the neighborhood association fails "to demonstrate any prejudice resulting from the alleged notice violation."

We have also found that failure to provide statutorily required notice of hearing constitutes a procedural error and would only provide a basis for reversal or remand if such a failure to provide notice of hearing prejudices the petitioner's substantial rights. Versteeg v City of Cave Junction, 17 Or LUBA 25, 28-29 (1988). The Oregon Supreme Court and Court of Appeals also view statutory notice of hearing requirements as procedural. See Warren v. Lane County, 297 Or 290, 299 n 12, 686 P2d 316 (1984) (describing failure to provide statutory notice of hearing as a "failure of process" and a "procedural error" that would provide a basis for reversal or remand if such failure "prejudiced substantial rights of the petitioner"); Flowers v. Klamath County, 98 Or App 384, 388-89, 780 P2d 227 (1989) (same). The city's failure to provide written individual notice in accordance with subsection 3(4) of Measure 56, assuming such notice was required, was a procedural error. Because petitioner does not allege the claimed failure by the city to provide notice in accordance with subsection 3(4) of Measure 56 prejudiced petitioner's substantial rights in any way, its arguments under this assignment of error do not provide a basis for remand.⁴

The third assignment of error is denied.⁵

FIRST ASSIGNMENT OF ERROR

Petitioner argues that the BZDS ordinance violates the Takings Clause of the Fifth Amendment to the United States Constitution.⁶ We understand petitioner to argue that the BZDS ordinance is unconstitutional on its face. Accordingly, the challenge is ripe for review. Cope v. City of Cannon Beach, 317 Or 339, 342, 855 P2d 1083 (1993).

In Agins v. Tiburon, 447 US 255, 260, 100 S Ct 2138, 65 L Ed 2d 106 (1980), the Supreme Court of the United States explained that a land use regulation:

"effects a taking if the ordinance does not substantially advance legitimate state interests * * * or denies an owner economically viable use of his land[.]"

Petitioner's argument under the first assignment of error is based entirely on the first prong of the Agins test, i.e. that "the ordinance does not substantially advance legitimate state interests."⁷

Petitioner argues that the purpose of the BZDS ordinance, which petitioner describes as ensuring that residents are "connected to the public realm," is not a legitimate state interest. Petitioner...