Lundeen v. City of Waldport, LUBA No. 2020-071

Decision Date05 May 2021
Docket NumberLUBA No. 2020-071
PartiesHOLLIS LUNDEEN, Petitioner, v. CITY OF WALDPORT, Respondent, and TIDEWATER DEVELOPMENT, LLC, Intervenor-Respondent.
CourtOregon Land Use Board of Appeals

HOLLIS LUNDEEN, Petitioner,
v.
CITY OF WALDPORT, Respondent,
and
TIDEWATER DEVELOPMENT, LLC, Intervenor-Respondent.

LUBA No. 2020-071

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

May 5, 2021


FINAL OPINION AND ORDER

Appeal from City of Waldport.

Hollis Lundeen filed the petition for review and argued on behalf of themselves.

Benedict J. Linsenmeyer filed a response brief and argued on behalf of respondent. Also on the brief was Macpherson, Gintner, & Diaz.

Dennis L. Bartoldus filed a response brief and argued on behalf of intervenor-respondent.

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

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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 city council decision on remand from LUBA, approving a planned unit development.

MOTION FOR JUDICIAL NOTICE

In the conclusion of the petition for review, petitioner requests that LUBA take "judicial notice" of several letters and photographs in Appendix 4 of the petition for review. The letters and photographs describe and depict construction or grading activity on the subject property that petitioner allegedly witnessed after the city issued the challenged decision. Petitioner cites the extra-record letters and photographs as evidence that the city erred in approving the proposed development under the applicable land use criteria, because the city allegedly allowed intervenor-respondent Tidewater Development, LLC (intervenor), to engage in construction or grading activities for the planned development without obtaining the Department of Environmental Quality (DEQ) permits required by the city's decision.1

With limited exceptions, LUBA's evidentiary review is confined to the local evidentiary record. ORS 197.835(2). Petitioner makes no attempt to demonstrate that the letters and photographs in Appendix 4 are subject to any

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exception to our limited scope of review under ORS 197.835(2). Petitioner also fails to assert any basis to take "judicial notice" of the letters and photographs. LUBA is not subject to and has no authority under ORS 40.060 to 40.085, which allow courts to take judicial notice of certain "adjudicative facts" outside the court record. LUBA has held that it will, in appropriate cases, take judicial notice of laws, regulations, and official acts pursuant to ORS 40.090. However, the letters and photographs in Appendix 4 clearly do not constitute judicially cognizable law under ORS 40.090. Accordingly, petitioner's request to take judicial notice of the letters and photographs in Appendix 4 is denied.

FACTS2

This is the third time that petitioner has appealed the city's approval of the challenged planned development. Lundeen v. City of Waldport, 78 Or LUBA 95 (2018) (Lundeen I); Lundeen v. City of Waldport, ___ Or LUBA ___ (LUBA No 2019-046, Oct 24, 2019) (Lundeen II). In Lundeen II, we described the subject property as follows:

"The subject property is 7.75 acres, vacant, located within the City of Waldport (city), and is zoned Residential R-1 for single-family

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dwellings. Surrounding land uses include single-family residential development and some undeveloped, residential-zoned property. Some of the subject property is comprised of steep slopes but much of the property slopes gently to the west. The proposed lots are primarily located on the more gently sloping areas. Most of the property that has steeper slopes is proposed for open space on a tract adjacent to the north and east boundaries of the planned development. A steep ravine runs along the north and a portion of the east boundaries.

"Access to the subject property is proposed via an extension of Norwood Drive, an existing public right of way that currently dead ends before it reaches the property. Norwood Drive serves multiple existing residences. The proposed development would extend Norwood Drive across the open space tract and steep ravine and into a circular street system that would provide access to the new lots." ___ Or LUBA at ___ (slip op at 3).

In 2018, the city approved intervenor's application for a 34-unit single-family residential planned development on the subject property. The city found that the proposed use complied with all Waldport Development Code (WDC) approval criteria, including WDC 16.60.030(C)(4), which provides:

"In considering a development proposal, the planning commission shall seek to determine that the development will not overload the streets outside the planned development area; and that the proposed utility and drainage facilities are adequate for the population densities and type of development proposed and will not create a drainage or pollution problem outside the planned area."

Petitioner appealed the city's initial approval to LUBA. In Lundeen I, we rejected all of petitioner's assignments of error except one that argued that the city's findings failed to evaluate whether the proposed utility and drainage facilities will "create a drainage or pollution problem outside the planned area." We

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sustained that assignment of error and remanded to the city to adopt findings on that point.

On remand, the city council referred the matter back to the planning commission, which conducted additional evidentiary proceedings and adopted findings concluding that the proposed utility and drainage facilities will not create a drainage or pollution problem outside the planned area. Petitioner appealed the planning commission decision to the city council, which again approved the application. Petitioner then appealed the city's second approval to LUBA. In Lundeen II, we rejected all of petitioner's assignments of error other than an argument that the findings on remand failed to consider whether temporary construction activities outside the planned area, i.e., construction of the Norwood Drive extension in the city-owned right-of-way, would cause drainage or pollution problems outside the planned area. We sustained that portion of an assignment of error and remanded to the city to adopt findings addressing that narrow issue.

On remand from Lundeen II, the city council retained the matter instead of referring it to the planning commission and scheduled a public hearing on May 14, 2020, to accept testimony and evidence on the limited issue of whether construction of the Norwood Drive extension would cause drainage or pollution problems outside the planned area, contrary to WDC 16.60.030(C)(4). Due to COVID-19 restrictions, the city limited in-person participation to petitioner and intervenor's representative, both of whom appeared at the hearing and offered

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testimony and evidence. The city kept the record open for an additional seven days, until May 21, 2020, for interested parties to submit additional testimony or evidence. Both petitioner and intervenor submitted additional testimony and evidence during that seven-day period. As part of its submittal, intervenor provided a two-page letter from an engineer. The record closed on May 21, 2020. On May 28, 2020, the city council deliberated and voted to approve the application. This appeal followed.

FIRST ASSIGNMENT OF ERROR

A. Remand Proceedings

Petitioner argues that the city committed procedural error by failing to refer the matter on remand to the planning commission and, instead, conducting an evidentiary remand hearing before the city council. Petitioner contends that WDC 16.60.030(C)(4) plainly requires that the planning commission determine whether the proposed utility and drainage facilities will "create a drainage or pollution problem outside the planned area." Petitioner argues that the city council has no authority under the WDC to take up that question in the first instance, based on newly submitted evidence that was never introduced to the planning commission.

In its decision, the city council adopted findings rejecting petitioner's argument:

"7. The city finds that it is appropriate that this matter on remand be heard only by the City Council and does not need to be referred to the Planning Commission. The city development

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code contains no requirement that this matter be referred to the planning commission after remand and LUBA imposed no such requirement. LUBA only remanded to allow the city to determine whether construction activities will create a drainage or pollution problem outside the planned area. This is a determination the City Council can make as the final decision maker of development in the city and as the city body that interprets the city's ordinances. Additionally, as a practical matter, any decision of the planning commission could be appealed to the City Council by any party who participated and it is extremely likely that any party that did not prevail at the Planning Commission on this matter would appeal to the City Council. By holding an evidentiary hearing before the City Council on the remanded issue the city provided the opportunity for the parties to submit evidence to the ultimate decision maker at the city. No party is prejudiced by that procedure and it provides due process to all the parties.

"8. The Planning Commission has twice previously approved this Planned Development. It is apparent to the City Council that the Planning Commission believed that it had adequately addressed all the requirements for approval of the planned development. Additionally, planned developments can be approved by the Planning Commission unless they are appealed to the City Council. Once they are appealed to the City Council the council has jurisdiction and authority to make the decision. [LUBA] remanded this matter to the city to make a determination and since this decision remanded from LUBA was remanded from a decision of the City Council it is appropriate for the City Council to address the remanded issue." Record 16-17.

The city council is correct that nothing in LUBA's opinion in Lundeen II obligates...

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