Recovery House VI v. City of Eugene

• Decision Date: 08 October 1997
• Docket Number: No. 97-021,97-021
• Citation: 946 P.2d 342,150 Or.App. 382
• Parties: RECOVERY HOUSE VI, Petitioner, v. CITY OF EUGENE, Respondent. LUBA; CA A98493.
• Court: Oregon Court of Appeals

Page 342

946 P.2d 342

150 Or.App. 382

RECOVERY HOUSE VI, Petitioner, v. CITY OF EUGENE, Respondent.

LUBA No. 97-021; CA A98493.

Court of Appeals of Oregon.

Argued and Submitted Sept. 2, 1997.

Decided Oct. 8, 1997.

Michael E. Farthing argued the cause for petitioner. With him on the brief was Gleaves Swearingen Larsen Potter Scott & Smith LLP.

Jerome Lidz argued the cause for respondent. With him on the brief were Emily K. Newton and Harrang Long Gary Rudnick P.C.

Before HASELTON, P.J., and DEITS, C.J., and ARMSTRONG, J.

DEITS, Chief Judge.

Petitioner Recovery House VI appealed to LUBA from the City of Eugene's issuance of a conditional use permit for which petitioner had applied. LUBA held that it lacked "jurisdiction" to consider petitioner's argument that petitioner was not required to obtain a conditional use permit in order to conduct the use in question. ¹ Petitioner seeks review, and we reverse and remand.

Petitioner applied for the permit in connection with a "recovery house" that it operates in a residential zone, housing 16 unrelated men who are recovering from alcohol or drug dependency. Petitioner had operated the facility for approximately nine months before it applied for the permit. Petitioner believed that its use was a permitted one in the zone, for which no conditional use permit was required. However, as explained by LUBA, petitioner was "prompted" to apply for the permit by various city actions and by "the city's demand that [petitioner] file an application for a conditional use permit in order to continue its operation." See note 4.

Petitioner filed the application but asserted that it was not required to obtain a conditional use permit for this use. "Single-family dwellings" are a permitted use in the zone. Section 9.015 of the Eugene Code defines "[d]welling, single family attached," inter alia, as "a freestanding building designed or used for the occupancy of one family, with housekeeping facilities for only one family." (Emphasis supplied.) According to petitioner, although the occupants of its facility are not members of the same family, the building in which it conducts its operation was designed for occupancy by a single family; hence, the use is a permitted one.

The application was first considered by a city hearings officer, who denied the application. Petitioner appealed the hearings officer's decision to the city planning commission. The commission first addressed at length and expressly rejected petitioner's contention that the use qualified as a permitted single-family dwelling for which a conditional use permit was not required. The principal basis for the commission's disagreement with petitioner's theory that the facility was a permitted single-family dwelling as defined by section 9.015 was that, if the phrase "designed or used" were to be read literally, intense non-residential uses would be permitted in the zone in structures that were originally designed for one-family residential use. Having concluded that petitioner's proposed use was not "permitted outright," however, the commission approved petitioner's conditional use permit application, subject to a number of conditions.

Petitioner appealed the planning commission's decision to LUBA and assigned error only to the commission's conclusion that the use was not "permitted as of right" but was subject to the conditional use permit requirement. ² The city asserted in response that the issue that petitioner sought to raise before LUBA was "moot" and was "not justiciable," because, inter alia, "the [c]ity gave petitioner what it asked for--the [conditional use permit]." LUBA essentially agreed. It explained:

"[P]etitioner did not follow a formal procedure to obtain an interpretation that no conditional use [permit] was required. Cf. Medford Assembly of God v. City of Medford, 297 Or. 138, 681 P.2d 790 (1984), [cert. den. 474 U.S. 1020, 106 S.Ct. 570, 88 L.Ed.2d 554 (1985) ] (a formal determination, even though only declaratory, that a conditional use permit is required is a land use decision). See also General Growth v. City of Salem, 16 Or LUBA 447 (1988) (where city's decision was not rendered pursuant to a code declaratory ruling procedure, it is not reviewable by LUBA under Medford Assembly of God). Petitioner instead applied for a conditional use permit. We agree with the city that by complying with the city's demand that it file an application for a conditional use permit in order to continue its operation, petitioner accepted the validity of that demand, at least for the purposes of the proceeding on its application. Because it cannot be presented to us in an appeal of the conditional use permit that petitioner applied for and that the city actually granted, we express no opinion on the question of whether the city properly determined that a conditional use permit was required in the first place." (Footnotes omitted.)

Petitioner now contends to us that LUBA erred in concluding that the issue was not reviewable. We agree with petitioner. We do not attach the significance that LUBA did to the fact that petitioner did not seek a declaratory determination concerning the need for a conditional use permit. Medford Assembly of God and the other appellate court cases relating to local declaratory rulings have been concerned with whether those rulings are themselves reviewable as "land use decisions," not with whether they might somehow be the exclusive means of proceeding at the local level in order to procure a decision that is subject to LUBA's review authority. ³ See Owen Development Group, Inc. v. City of Gearhart, 111 Or.App. 476, 826 P.2d 1016 (1992). Indeed, in holding that the declaratory determination that the petitioners appealed to LUBA in Owen Development Group was not a reviewable land use decision, we suggested that an application for a conditional use permit instead of the declaratory determination might be the preferable means by which the petitioners in that case could obtain a reviewable local decision. 111 Or.App. at 481, 826 P.2d 1016.

Moreover, unlike the city in Medford Assembly of God, the city here has no procedure in its land use legislation for declaratory determinations. Given that, the procedure that petitioner pursued in this case would appear to be an alternative route to the same destination as the one that the petitioners followed in the Medford case. The local procedure that petitioner followed here, and the local decision that resulted, do not differ in any meaningful way from the procedure and decision that the Supreme Court held were sufficient to invoke LUBA's jurisdiction in Medford Assembly of God.

The petitioner in that case sought a local determination through a declaratory process that it was not required to obtain a conditional use permit for a school, after city officials had apprised it that a permit was necessary. Under materially identical circumstances, petitioner here sought essentially the same kind of determination as part of its application for the conditional use permit. The question of whether a permit was required was presented to and decided by the planning commission. The commission's determination entailed an application of section 9.015 and other provisions of the city's land use regulations. As such, it comes squarely within the definition of a "land use decision" in ORS 197.015(10)(a)(A).

The crux of LUBA's reasoning on the reviewability question is contained in its statement that,

"by complying with the city's demand that it file an application for a conditional use permit in order to continue its operation, petitioner accepted the validity of that demand, at least for the purposes of the proceeding on its application."

LUBA's rationale appears to be an analog of the "invited error" principle, and rests on the premise that petitioner got what it asked for. However, petitioner did not get what it asked for; it may have gotten what it applied for, but the application was effectively compelled by the city, and the principal argument that petitioner made--and that the city answered adversely--in the proceedings on the application was that petitioner was not required to apply for or to have the conditional use permit in order to conduct the recovery house operation. ⁴

In sum, in the city proceedings on its application, petitioner raised and the planning commission decided the question of whether a conditional use permit was required. The planning commission's answer involved an application of the city's land use regulations and therefore comes within the statutory definition of a "land use decision." The answer was adverse to petitioner's position. Finally, insofar as the city argues or LUBA held, there was no required alternative to the conditional use permit application that petitioner could have or had to follow in order to raise the question.

We hold that LUBA...