Landwatch Lane Cnty. v. Lane Cnty.

• Decision Date: 31 January 2019
• Docket Number: LUBA No. 2018-093
• Parties: LANDWATCH LANE COUNTY, Petitioner, v. LANE COUNTY, Respondent, and ATR SERVICES, Intervenor-Respondent.
• Court: Oregon Land Use Board of Appeals

LANDWATCH LANE COUNTY, Petitioner,
v.
LANE COUNTY, Respondent,
and
ATR SERVICES, Intervenor-Respondent.

LUBA No. 2018-093

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

January 31, 2019

FINAL OPINION AND ORDER

Appeal from Lane County.

Sean T. Malone, Eugene, filed the petition for review and argued on behalf of petitioner.

No appearance by Lane County.

Bill Kloos, Eugene represented intervenor-respondent.

ZAMUDIO, Board Member; RYAN, Board Chair; BASSHAM, Board Member, participated in the decision.

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

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Opinion by Zamudio.

NATURE OF THE DECISION

Petitioner appeals a county ordinance that adopts text amendments to county code provisions governing land use applications and appeals.

FACTS

Lane Code (LC) Chapter 14 provides the procedures for county land use applications and appeals. On July 10, 2018, the Board of Commissioners of Lane County enacted Ordinance No. 18-02, revising LC Chapter 14 and related cross-references and definitions in other code chapters.¹ Petitioner challenges some of those amendments in this appeal.

FIRST ASSIGNMENT OF ERROR

In the first assignment of error, petitioner argues that the county code is inconsistent with state law because it requires appellants to specify appeal issues as a jurisdictional prerequisite to obtaining an initial evidentiary hearing. We previously summarized the relevant statutory framework in Bard v. Lane County, 63 Or LUBA 1, 5, aff'd, 243 Or App 245, 256 P3d 205 (2011):

"Under ORS 215.402(4), a 'permit' is defined as 'discretionary approval of a proposed development of land.' For clarity, in this opinion we generally refer to 'permits,' as ORS 215.402(4) defines that term, as 'statutory permits.' Except as provided in ORS 215.416(11), when ruling on an application for a statutory permit, the county must 'hold at least one public hearing.' ORS 215.416(3).

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The exception in ORS 215.416(11) authorizes the county to make decisions concerning statutory permits without first providing a public hearing. However, to take advantage of ORS 215.416(11), the county must give 'notice of the [statutory permit] decision and provide[] an opportunity for any person who is adversely affected or aggrieved, or who is entitled to notice * * *,' to file a local appeal. ORS 215.416(11)(a)(A). Under ORS 215.416(11), 'the appeal shall be to a de novo hearing.' ORS 215.416(11)(a)(D). To summarize, under these statutes, when rendering a statutory permit decision, the county must provide a prior public hearing on the application, or provide notice and an opportunity for an appeal that includes a de novo public hearing, after the statutory permit is approved without a prior hearing. Counties are free to adopt their own procedures for reviewing applications for statutory permits, but those local procedures must be consistent with the statutory procedures."

LC 14.030(1)(b)(i) governs county decisions, made without a hearing, by the county planning director, or the director's designated representative (collectively, director), for Type II procedures, which include statutory permit decisions.² Those decisions may be appealed, and as explained in Bard, the local

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appeal procedures must be consistent with the statutory procedures. LC 14.030(1)(b)(ii)(ee) ("Appeals of Type II decisions may be made in accordance with the procedures at LC 14.080.").

Under LC Chapter 14, local appeals are submitted to the director, who serves as a gatekeeper and decides whether to accept the local appeal, and thus allow it to proceed to a hearing. The director must reject an appeal that does not satisfy LC 14.080(1). LC 14.080(2)(b). In addition, even if the director accepts an appeal, the hearings official or board of commissioners may dismiss an appeal that does not comply with LC 14.080(1)(c). LC 14.080(2)(e). As pertinent here, a notice of local appeal must specify the error in the director's decision. LC 14.080(1)(c)(vi), (vii).³

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Petitioner argues that LC 14.080(1) and (2) are inconsistent with ORS 215.416(11) because those subsections make raising and identifying appeal issues prior to an initial hearing a jurisdictional requirement, while ORS 215.416 contains no such limitation.

As far as we can tell, petitioner's argument raises an issue that has not previously been decided by LUBA or the appellate courts—viz., whether local legislation that allows a county to dismiss an appeal for failure to submit a

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specific appeal statement is inconsistent with ORS 215.416. We recently identified but did not decide that issue.

In Rogue Advocates v. Josephine County, ___ Or LUBA ___ (LUBA Nos 2017-065/092, Aug 3, 2018), the petitioner argued that the board of county commissioners "exceeded its jurisdiction" by considering a local appeal of a planning director's decision made without a hearing because the local appellant did not submit an appeal statement specifying the grounds for appeal as required by the county code, which provides that failure to submit such an appeal statement "shall be considered a jurisdictional defect, and the appeal shall be dismissed." Rogue Advocates, ___ Or LUBA at ___ (slip op at 5-6). We remanded the county's decision for the county to interpret the county code in the first instance. Id. (slip op at 10-11). We observed that ORS 215.416(11)(a)(E) requires a de novo hearing and explained the history of that provision:⁴

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"ORS 215.416(11)(a)(E) was adopted as an amendment to ORS 215.416(11)(a) by the legislature in 2001 in order to overturn the Court of Appeals' holding in Johns v. City of Lincoln City, 146 Or App 594, 933 P2d 978 (1997). Or Laws 2001, ch 397, §1. Johns concerned a permit decision that had been rendered initially without a hearing under ORS 227.175(10)(a) (the city counterpart to ORS 215.416(11)(a)), then appealed to the planning commission for a hearing and ultimately to the city council. Lincoln City Code provisions required that persons attempting to appeal such a permit decision specify 'the basis for the appeal.' 146 Or App at 596. Based on that code requirement, the Court of Appeals held that the issues the local appellant raised before the local appellate body were limited to the issues specified in appellant's notice of local appeal. 146 Or App at 602-03. ORS 215.416(11)(a)(E) has the effect of legislatively overruling the Court of Appeals' holding in Johns, that the issues the local appellant raised on appeal were limited to the issues specified in the notice of appeal. Pursuant to ORS 215.416(11)(a)(E), the issues that may be raised at the hearing are unlimited. * * *" Rogue Advocates, ___ Or LUBA at ___ (slip op at 8).

Here, consistently with ORS 215.416(11)(a)(E), LC 14.080(3)(b) provides that the county may not limit the scope of the appeal hearing to issues raised in the notice of appeal.⁵ However, the question presented is whether LC 14.080,

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which makes the failure to submit a statement of appeal that includes the information in LC 14.080(1)(c)(vi) and (vii) a jurisdictional defect, is inconsistent with ORS 215.416(11). That question is not answered by the fact that the code provides for a de novo hearing.

Under the statutory scheme of which ORS 215.416(11) is a part, the default process for a permit application is to provide an evidentiary hearing. ORS 215.416(3).⁶ ORS 215.416(11) provides for an alternative process for making an initial decision without a hearing, subject to providing notice of the decision and an opportunity to request an initial de novo evidentiary hearing that would otherwise have been required under ORS 215.416(3). See Johns, 146 Or App at

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599 (concluding that the term "de novo" and the overall statutory scheme require the local government to provide a plenary hearing). Under that scheme, any jurisdictional barriers a local government places on an appellant's right to obtain that initial evidentiary hearing must be consistent with the text and purpose of that statutory scheme.

In our view, the statutory rights to obtain an initial evidentiary hearing, and to present a potentially unlimited array of issues at that initial evidentiary hearing, are considerably undermined if the request for an initial evidentiary hearing can be rejected at the outset for what is deemed a jurisdictional failure to present issues in the notice of appeal, as required by LC 14.080(1). LC 14.080(1) and (2) do more than simply require an appellant to specify one or more issues and, instead, make the specification of at least one issue jurisdictional.⁷ The appellant

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must specify issues from an exclusive list of five types of issues. LC 14.080(1)(c)(vii). Further, the appellant must explain "the specific issues being raised on appeal with sufficient specificity to afford the approval authority the opportunity to resolve each issue raised," and provide an "explanation with detailed support[.]" LC 14.080(1)(c)(vi), (vii). Moreover, the code empowers the director, and later the hearings official and county commissioners, to dismiss a local appeal based on a subjective, qualitative assessment of how well the appellant has explained and supported the issues raised.

A local government may require the appellant to specify issues in the notice of appeal to flush out issues early in the process. See Johns, 146 Or App at 600 ("the statute does not proscribe local legislation requiring a notice of appeal that sets forth with reasonable particularity the issues that the appealing party will raise at the hearing"). However, a local government cannot make that requirement a jurisdictional bar to obtaining the initial evidentiary hearing required by ORS 215.416(3) and (11). Similarly, we do not believe it can, consistent with the statute, limit the issues specified to five types of issues, or approve or reject requests for an initial evidentiary hearing based on a qualitative assessment of how well the appellant has explained...