Stadelman v. City of Bandon, LUBA No. 2020-113

• Decision Date: 10 May 2021
• Docket Number: LUBA No. 2020-113
• Parties: THOMAS STADELMAN, Petitioner, v. CITY OF BANDON, Respondent.
• Court: Oregon Land Use Board of Appeals

THOMAS STADELMAN, Petitioner, v. CITY OF BANDON, Respondent.

LUBA No. 2020-113

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

May 10, 2021

FINAL OPINION AND ORDER

Appeal from City of Bandon.

Zack P. Mittge and William H. Sherlock represented petitioner.

Frederick J. Carleton and Bill Kloos represented respondent.

RUDD, Board Chair; RYAN, Board Member; ZAMUDIO, 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. Opinion by Rudd.

NATURE OF THE DECISION

Petitioner challenges the city's adoption of Ordinance No. 1636, which amends the city's code to remove zone-specific geotechnical reporting requirements and to adopt a hazard overlay zone.

FACTS

On June 16, 2020, and August 27, 2020, the planning commission held work sessions on the ordinance. On October 22, 2020, the planning commission held a public hearing and voted to recommend adoption of the ordinance to the city council. On November 2, 2020, the city council held a public hearing on the ordinance, which began at 7:00 p.m. At the conclusion of the November 2, 2020 public hearing, the city council voted to adopt the ordinance. Record 11.

This appeal followed.

MOTION TO DISMISS

ORS 197.830(2) sets out the requirements for standing to appeal to LUBA:

"Except as provided in ORS 197.620, a person may petition the board for review of a land use decision or limited land use decision if the person:

"(a) Filed a notice of intent to appeal the decision as provided in subsection (1) of this section; and

"(b) Appeared before the local government, special district or state agency orally or in writing."

We have explained that "[a] bare neutral appearance," meaning "[a]n oral or written statement of almost any kind," will satisfy the "appearance" requirementat ORS 197.830(2)(b). Century Properties, LLC v. City of Corvallis, 51 Or LUBA 572, 582, 586, aff'd, 207 Or App 8, 139 P3d 990 (2006).

On March 9, 2021, the city filed a motion to dismiss the appeal because, according to the city, petitioner did not appear below. For the reasons explained below, the motion is granted.

In our March 3, 2021 order resolving petitioner's record objections, we denied petitioner's objection that the record should include a letter that petitioner emailed to the mayor, the city manager, and the city's attorney on November 2, 2020, the date that the city council held its only public hearing on the ordinance. The city explains in its motion to dismiss that this letter provided the only basis for petitioner's claim to have met the appearance requirement at ORS 197.830(2)(b). In denying petitioner's objection, we explained:

"Unless LUBA otherwise orders, or the parties otherwise agree in writing, the record must include '[a]ll written testimony and all exhibits, maps, documents or other materials specifically incorporated into the record or placed before, and not rejected by, the final decision maker, during the course of the proceedings before the final decision maker.' OAR 661-010-0026(1)(b).

"* * * * *

"The city responds that, while petitioner emailed the letter to the city manager and the city's attorney before the public hearing started, because petitioner did so at 5:35 p.m.—after close of business—neither person saw the email or physically placed it before the city council before the record was closed during the meeting. The city also responds that petitioner did not email the letter to the mayor until 8:41 p.m.—after the hearing had concluded. Further, the city responds that the public notice for the hearing directed participantsto email comments to a specific email address: 'Written comments are encouraged and may be submitted to the planning department by mail, by emailing planning@cityofbandon.org, or in-person at City Hall.' Record 85. Thus, the city responds that the letter was not 'placed before * * * the final decision maker, during the course of the proceedings before the final decision maker.' OAR 661-010-0026(1)(b).

"In Neighbors 4 Responsible Growth v. City of Veneta, the public notice for the city's hearing provided similar instructions for how comments were to be submitted, as well as a deadline for submitting such comments. 50 Or LUBA 745, 754 (2005). Although a participant emailed comments to the correct email address, they did so after the deadline. Id. at 753-54. We repeated the three most common ways to place documents before a decision maker:

"'Items are placed before the local decision maker if (1) they are physically placed before the decision maker prior to the adoption of the final decision; (2) they are submitted to the decision maker through means specified in local regulations or through appropriate means in response to a request by the decision maker for submittal of additional evidence; or (3) local regulations require that the item (e.g., record of a lower level decision maker's proceeding) be placed before the decision maker.' Id. at 754 (quoting ONRC v. City of Oregon City, 28 Or LUBA 775, 778 (1994)).

"We observed that, although the city did not have generally applicable rules governing pre-hearing submittal of comments, the instructions in the public notice nonetheless implicated the second of the above-described methods. Id. We remarked that, if the comments had been sent to and received by the city before the deadline, and city staff thereafter failed to provide those comments to the decision maker, we likely would have agreed that the comments were placed before the decision maker within the meaning of OAR 661-010-0025(1)(b). Id. However, because the sender did not follow the instructions in the public notice, we concluded that their comments could only have been placed before the decision maker if city staff or petitioner physically placed thecomments before the decision maker. Id. at 754-55. That there was an additional business day between when the comments were submitted and when the hearing was held and that the sender also sent the comments to other city staff were not by themselves sufficient. Id. at 753, 753 n 3. Had any staff that received a copy of the comments physically placed them before the decision maker, then they would have been part of the record. Id.

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