Willamette Oaks LLC v. City Of Eugene

• Decision Date: 08 March 2011
• Docket Number: LUBA No. 2010-061,LUBA No. 2010-060,LUBA No. 2010-062
• Parties: WILLAMETTE OAKS, LLC, Petitioner, v. CITY OF EUGENE, Respondent, and GOODPASTURE PARTNERS LLC, Intervenor-Respondent. GOODPASTURE PARTNERS LLC, Petitioner, v. CITY OF EUGENE, Respondent, and WILLAMETTE OAKS, LLC, Intervenor-Respondent.
• Court: Oregon Land Use Board of Appeals

WILLAMETTE OAKS, LLC, Petitioner,

v.CITY OF EUGENE, Respondent, andGOODPASTURE PARTNERS LLC, Intervenor-Respondent.

GOODPASTURE PARTNERS LLC, Petitioner,

v.CITY OF EUGENE, Respondent, andWILLAMETTE OAKS, LLC, Intervenor-Respondent.

LUBA No. 2010-060

LUBA No. 2010-061

LUBA No. 2010-062

BEFORE THE LAND USE BOARD OF APPEALS

OF THE STATE OF OREGON

REMANDED: March 8, 2011

FINAL OPINION

AND ORDER

Appeal from City of Eugene.

Zack P. Mittge, Eugene, filed a petition for review and a response brief and argued on behalf of Willamette Oaks, LLC. With him on the briefs were William H. Sherlock and Hutchinson, Cox, Coons, DuPriest, Orr and Sherlock, PC.

Michael C. Robinson, Portland, filed a petition for review and a response brief and argued on behalf of Goodpasture Partners LLC. With him on the briefs were Perkins Coie LLP.

Emily N. Jerome, City Attorney, Eugene, filed the response brief on behalf of respondent.

RYAN, Board Member; participated in the decision.

BASSHAM, Board Member; concurring.

HOLSTUN, Board Chair; dissenting.

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

NATURE OF THE DECISION

In LUBA Nos. 2010-060 and 2010-061, Willamette Oaks, LLC (Willamette Oaks) appeals a decision by the city planning commission approving a zone change, tentative planned unit development and an adjustment review. In LUBA No. 2010-062, Goodpasture Partners, LLC (Goodpasture Partners), the applicant below, appeals the same decision.

FACTS

The subject property contains two parcels totaling approximately 23 acres that lie to the north and south of Alexander Loop, which is designated as a local street in TransPlan, the City of Eugene Transportation Systems Plan (TSP). Although called a loop, at present Alexander Loop currently intersects with Goodpasture Island Road, a minor arterial in the TSP, in only one location. The proposal contemplates completing the loop with a second connection to Goodpasture Island Road to the north of the existing connection. Goodpasture Island Road, in turn, connects with Delta Highway at interchanges in two locations that are to the north and the south of the proposed development.

Goodpasture Partners applied for a zone change for the property from Medium Density Residential (R2) to Limited High Density Residential (R3), a planned unit development, and an adjustment, to develop a five-parcel PUD with 583 residential units in several buildings, and a single commercial building. As required by the Eugene Code (EC), Goodpasture Partners submitted a Traffic Impact Analysis (TIA) with its applications. The hearings officer approved the zone change, PUD application, and adjustment review, and Willamette Oaks appealed the decisions to the planning commission. The planning commission held an on the record hearing and voted to uphold the hearings officer's decisions with some modifications. These appeals followed.

REPLY BRIEFS

Willamette Oaks moves for permission to file a reply brief that exceeds five pages to respond to new matters raised in Goodpasture Partners' response brief, and to file a separate reply brief with fewer than five pages to respond to new matters raised in the city's brief. Goodpasture Partners moves for permission to file a reply brief to respond to Willamette Oaks' response brief. No party objects to the reply briefs, and they are allowed.

ASSIGNMENT OF ERROR (GOODPASTURE PARTNERS)

EC 9.7655(2) provides in relevant part that in order to appeal a decision of the hearings officer:

"The appeal shall be submitted on a form approved by the city manager, be accompanied by a fee established pursuant to EC Chapter 2, and be received by the city no later than 5:00 p.m. of the 12th day after the notice of decision is mailed."

Willamette Oaks appealed the decisions of the hearings officer approving the zone change and PUD and paid an appeal fee in the amount of $16,229.48. According to Willamette Oaks and the city, the amount that Willamette Oaks paid as the appeal fee was the amount that city planning staff told Willamette Oaks to pay.¹ That amount, it turned out, was $135.37 less than the actual appeal fee.² Goodpasture Partners notified the city of the payment shortage and the city in turn notified Willamette Oaks that it owed an additional $135.37. Willamette Oaks then paid the additional $135.37.

In its assignment of error, Goodpasture Partners argues that the city erred in allowing the planning commission to consider Willamette Oaks's appeals of the hearings officer's decisions approving Goodpasture Partners' applications because the appeal fee that Willamette Oaks paid when it filed its appeal was less than the appeal fee required by the EC. According to Goodpasture Partners, the phrase "* * * shall * * * be accompanied by a fee established pursuant to EC Chapter 2" in EC 9.7655(2) means that the requirement to pay the appeal fee is a mandatory prerequisite for appeal, and Willamette Oaks' failure to satisfy that prerequisite means that the city was obligated to reject Willamette Oaks' appeal. In support of its argument, Goodpasture Partners cites Ramsey v. City of Portland, 29 Or LUBA 139 (1995). In Ramsey, LUBA upheld the city's refusal to accept a local appeal of a decision where the appellant failed to pay the required appeal fee and instead submitted a request for a fee waiver with the appeal form that the appellant delivered to the city.

The city adopted findings addressing Goodpasture Partners' argument, and interpreted EC 9.7655(2) not to require dismissal of the appeal:

"While it is clear that the City's code requires that an appeal include an appeal fee, the City's code does not specify the consequence of an underpayment of an appeal fee based on a City staff miscalculation. We are cited to nothing in the code that indicates that the consequence should be dismissal of the appeal and we decline to do so, particularly considering the facts that this [appellant] relied on City staff's calculation, that the underpayment was slight and that it was immediately addressed when the appellant was notified." Record 12.

The city and Willamette Oaks respond that the planning commission correctly determined that nothing in EC 9.7655(2) indicates that its requirements are mandatory prerequisites, such that failure to satisfy any of those requirements should result in dismissal of a local appeal, or alternatively, in the city's refusal to accept an appeal. Willamette Oaks also points out that unlike the situation in Ramsey, where no appeal fee was ever paid and no fee waiver had been granted to support that nonpayment prior to filing the local appeal, as was required by the local code if no appeal fee was included with the appeal, Willamette Oaks paid the appealfee that the city told it to pay and its underpayment of the appeal fee was promptly rectified when called to Willamette Oaks' attention.

We review the planning commission's interpretation of EC 6.7655(2) to determine if it is correct. Gage v. City of Portland, 133 Or App 346, 349-50, 891 P2d 1331 (1995). We agree with the planning commission's interpretation of EC 6.7655(2) that nothing in that code section specifies that the consequence for an underpayment of an appeal fee based on misinformation from planning staff is dismissal of a local appeal, and we agree with Willamette Oaks and the city that in that circumstance, the planning commission correctly concluded that the consequence for underpayment of an appeal fee is not to dismiss the local appeal. See Ratzlaff v. Polk County, 56 Or LUBA 740, 745 (2008) (where nothing in local law governing payment of appeal fees states that failure to pay appeal fee is a jurisdictional requirement, it is not error for a county to hear the appeal); Golden v. Silverton, 58 Or LUBA 399, 407 (2009) (if a local government wants to make dismissal of a local appeal the consequence for failure to comply with an informational requirement on an appeal form, the local government must do so with sufficient clarity to put parties on notice that such a failure will result in dismissal). Moreover, even assuming that payment of an appeal fee is a mandatory prerequisite, unlike the circumstances in Ramsey, Willamette Oaks satisfied any mandatory prerequisite to pay an appeal fee when it paid the fee that it was told to pay by the city. Willamette Oaks did not, as was the case in Ramsey, simply submit its appeal form without the required fee. The fact that the fee that Willamette Oaks submitted was less than the amount that was actually required under the EC, apparently due to an error by planning staff in calculating the amount of the appeal fee, does not mean that Willamette Oaks failed to comply with any mandatory EC 6.7655(2) requirement that an appeal fee accompany the appeal form.

Goodpasture Partners' assignment of error is denied.

FIRST ASSIGNMENT OF ERROR (WILLAMETTE OAKS)

A. Transportation Planning Rule-Significant Effects Determination

OAR 660-12-0060 (the Transportation Planning Rule or TPR) requires that if a land use regulation amendment, such as the proposed zone change from R2 to R3, "significantly affects" a transportation facility, the local government must put in place one or more measures specified in OAR 660-012-0060(2). As relevant here, OAR 660-012-0060(1) provides that a plan or land use regulation amendment "significantly affects" an existing transportation facility if it would: (1) change the functional classification of an existing or planned transportation facility (OAR 660-012-0060(1)(a)); (2) reduce the performance of a transportation facility below the minimum acceptable standard identified in the relevant TSP (OAR 660-012-0060(1)(c)(B)), or (3) worsen the performance of a facility that is projected to perform below the minimum acceptable standard, in the relevant TSP (OAR 660-012-0060(1)(c)(C)). The second and third types of "significant affect" are both measured at the end of the planning period identified in the...