Petitioners Nena Lovinger and Paul Conte seek judicial review of a final order of the Land Use Board of Appeals (LUBA), affirming a decision by the City of Eugene (city) to grant approval to Oakleigh Meadows Co-Housing, LLC (applicant) for a tentative planned unit development (PUD). Among other things, LUBA concluded that a public notice of a limited hearing was adequate, although the record later was reopened for new evidence and testimony, contrary to the notice provided. In their first assignment of error, petitioners argue that the city failed to provide adequate notice, thereby depriving Lovinger of the opportunity to respond to new evidence or testimony. On that point, we agree, reverse, and remand. As to petitioners' other assignments of error, we affirm LUBA's decision without discussion.
This decision follows a prior decision concerning notice of proceedings involving applicant's tentative PUD,
Thereafter, LUBA allowed Trautman's motion to intervene. LUBA found that the city's failure to have given him notice had deprived him of the opportunity to participate in the hearing before the planning commission on appeal. That opportunity would have allowed him to offer his opinion to the commission about the PUD proposal based on the underlying record before the hearings official. LUBA remanded the matter to the city to allow Trautman that opportunity to express his opinion.
(Underlining and boldface in original.)
Just before the July 28 hearing, Trautman submitted to the commission lengthy written testimony and several hundred pages of attachments. Among other things, Trautman suggested that the south side of the pavement of Oakleigh Lane, which was access to the PUD site, lay partially on private properties, so as to leave a narrower paved width in the public right of way. Given that, he raised safety concerns about accommodating emergency vehicles. At the hearing, the city attorney Davies advised the commission that it should decide whether to admit some of Trautman's materials, because some could be considered "new evidence" that was not in the record before the hearings official.
On August 12, 2015, Davies wrote a legal memorandum reviewing Trautman's materials in light of the Eugene Code (EC). As for Trautman's suggestion that some of the paving width encroached on several lots, Davies advised the commission that "any of the paved portion of Oakleigh Lane that lies outside the right of way that has existed for 10 years or more will be considered to have been acquired by the City as a prescriptive easement."
Reacting to Davies's opinion, Conte and five other people wrote identically worded email messages, disputing that there was a prescriptive easement. They characterized Davies's legal advice as "new facts" that should entitle them to respond with their own "rebuttal" evidence. They urged that the record be reopened.
On August 17, 2015, the commission reconvened to deliberate. The commission determined that Trautman had proffered new evidence but that it was evidence on a point of concern that the commission wished to consider — a concern about safety if a portion of the street's pavement was not within the right of way. The commission voted to reopen the record, limited to evidence regarding the width and safety of Oakleigh Lane. The record was opened for a two-week period, followed by short periods for rebuttal evidence and arguments. During that time, Trautman and the applicant tendered surveys and information on the issue of safety access.
During a meeting on September 28, 2015, the commission also accepted into the record the message from Conte and the duplicates from others objecting to Davies's advice about a prescriptive easement.
On October 6, 2015, the commission issued a notice of its decision, finding access to be
Trautman and Conte filed an appeal to LUBA, and Lovinger intervened, aligned as a petitioner. Lovinger argued that, under ORS 197.763(7), the city committed a procedural error when it voted to accept new evidence from the applicant after having stated in the July notice that it would not accept any new evidence. She did not object to the commission having accepted evidence from Trautman or the email message from Conte and others. Instead, Lovinger complained that she was not notified that she could provide comment or testimony at the public hearing on the appeal before the planning commission. That error, she contended, resulted in prejudice to her substantial rights. ORS 197.835(9)(a)(B) (board required to reverse or remand land use decision under review if the board finds that a failure "to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights of the petitioner").
LUBA affirmed the city's decision, concluding that the city did not commit error. LUBA explained that "[petitioner] * * * failed to identify a procedure that the city violated." LUBA opined that no authority required the city to either "adhere to the the procedure set out in the initial notice" or "to provide individual written notice to [petitioner] that the planning commission continued the hearing and that it ultimately voted to reopen the evidentiary record."
In their petition for judicial review, petitioners reiterate that the city erred by giving a misleading notice or by reopening the record without providing further notice to Lovinger. They rely on ORS 197.763(7) as implicit authority.
"We review LUBA's legal conclusions to ascertain if they are `unlawful in substance,' that is, if LUBA's opinion represents a mistake of law."
The planning commission reviews, in an appellate role, the decision of a hearings officer on a permit. See ORS 227.160(2) ("`Permit' means discretionary approval of a proposed development of land[.]"); ORS 227.175 (an application for a permit is submitted to hearings officer when required by city); ORS 227.180 (review of decision of hearings officer by planning commission as "appellate authority"). In relevant part, ORS 227.180(1)(a) provides, "The procedure for such an appeal or review shall be prescribed by the council[.]" Accordingly, the City of Eugene prescribes the procedure for an appeal to the planning commission in EC 9.7650 through 9.7685.
When the commission reviews on appeal, EC 9.7655(2) provides, in part, "No new evidence pertaining to appeal issues shall be
Just as ORS 227.180(1)(a) points to the city code for planning commission procedures on appeals, the city code points back to a statute on quasi-judicial hearings. That is, EC 9.7675 provides:
(Emphasis added.) In effect, EC 9.7675 incorporates the relevant parts of ORS 197.763 — the statute setting forth quasi-judicial procedures on land use decisions — and makes relevant parts applicable to an appellate hearing before the planning commission. That would certainly be the case when, contrary to EC 9.7655, the commission changes the nature of the proceeding from a hearing to review the closed record of an earlier proceeding to an open hearing entertaining new evidence as would a hearings official.
The necessary content of a notice of a quasi-judicial evidentiary hearing is described at ORS 197.763(3). Among the requirements, a notice must describe the proceeding by explaining the nature of the application, the uses that could be authorized, and the criteria that apply to the application. ORS 197.763 (3)(a), (b). The notice must include a warning that a failure to raise an issue will waive it, precluding subsequent review of that issue. ORS 197.763(3)(e). Importantly, the notice must "[i]nclude a general explanation of the requirements for submission of testimony and the procedure for conduct of hearings." ORS 197.763(3)(j).
Similarly, EC 9.7665(2)(d) requires that a notice of an appeal to the planning commission include the nature of the application and the proposed use that could be authorized. More particularly, the notice must provide a "general explanation of the requirements for submission of testimony and the procedure for conduct of hearings." EC 9.7655(2)(f). And, the notice must include a "brief summary of the local decision making process for the decision being made." EC 9.7655(2)(j).
Finally, ORS 197.763 assures participant rights when a hearing, once closed, is reopened to admit new evidence. In relevant part, ORS 197.763(7) provides, "When a local * * * planning commission * * * reopens a record to admit new evidence, arguments or testimony, any person may raise new issues which relate to the new evidence, arguments, testimony or criteria for decision-making which apply to the matter at issue."
Taken together, the notice and procedure provisions of EC 9.7655 and ORS 197.763 require a better notice of participatory rights than that given here before conducting a combined appellate-evidentiary hearing on a PUD application.
Under those circumstances, we cannot conclude, as do the city and LUBA, that nothing requires a more accurate notice at the outset or a corrective notice when a closed, underlying record is "reopened" on review. City code implicitly requires accurate notice of the "local decision making process for the decision being made." EC 9.7665(2)(j). And, when a record is "reopened" so as to render inaccurate the notice once given, ORS 197.763(3) and (7) implicitly require that doing so must be consistent with the notice already given or a curative notice provided. If it were otherwise, interested participants, who lack notice of anything but a closed record, would not know that they have an opportunity to respond to the new evidence, arguments, or testimony, that ORS 197.763(7) promises them. In an earlier case, LUBA made the same observation when interpreting the statute:
Gardener v. Marion County, 56 Or. LUBA 583, 589 (2008) (emphasis added). We endorse that interpretation of ORS 197.763(7) under these circumstances. We hold that, when the notice announced a review proceeding on a closed record, but the commission reopened the record to new evidence, EC 9.7655 and ORS 197.763 require a corrective notice be given of the opportunity for any person to address the new evidence.
The city argues that, in any event, Lovinger was not one of the individuals entitled to notice. The city relies on EC 9.7315(2), which omits mention of notice to someone who has given written comments. However, that provision applies only to notice of the initial proceeding before the hearings officer, not to an appeal to the planning commission. Another provision applies here. Whenever an initial decision is appealed to the planning commission, EC 9.7665(1)(e) requires that notice of the hearing shall be mailed to "[a]ny person who submitted written comments in regards to the original application." Lovinger's brief email message, which was included in the hearings official's record, qualified her as a person entitled to notice of the hearing before the planning commission. EC 9.7665(1). Lovinger received notice of a limited hearing, but not notice of the proceedings that ensued.
We do not agree with the city or applicant that Lovinger had adequate notice because she received the initial notice and that she simply failed "to follow the progress of the application" to learn that additional evidence or argument would be accepted. We rejected a similar argument in
We distinguished Apalategui v. Washington Co., 80 Or.App. 508, 513-14, 723 P.2d 1021 (1986), where proper notice was given for a hearing that was extended with a continuance announced in the noticed meeting.
In this case, notice was not compromised as in Hausam by being sent too few days before a hearing. Notice was compromised by the content that the notice itself contained. Conscious of the limited purpose of the remand, the commission's notice warned that the hearing would only serve to provide Trautman the chance to speak about the PUD proposal based on the prior record before the hearings official. No new evidence would be received, and, excepting the applicant, no others would be heard. Circumstances proved a narrow notice wrong.
With irony, Lovinger observes, "If the City had followed the limitations set out in that notice, only allowing the two selected parties to submit argument and not new evidence, there would have been no error." In order to entertain Trautman's concern about access, the commission opened the record to evidence limited to the issue involving paving width and safety. Faced with the reaction to its legal advice, the commission also accepted the message from Conte and the duplicates from others. No doubt, the commission sought to ensure a sound decision based on complete information and, in a spirit of openness, also accepted the email messages it had received. In admitting new evidence, the commission entitled Lovinger or others to add their comments about the new evidence. See ORS 197.763(7) (allowing "any person" to respond to new evidence, arguments, or testimony). The forbearance granted to critics Trautman and Conte entitled fellow critic Lovinger to the same.
Lovinger cannot be presumed to have known about that opportunity unless given notice.
(Emphasis added.) She continued,
(Emphasis added.) Even if her statements imply that Lovinger did know that Trautman or the applicant could offer new evidence or testimony, the problem remains that the notice of a limited hearing did not tell Lovinger that she or "any person" was free to provide a response when the record was reopened to allow new evidence or testimony. See ORS 197.763(7) (so providing). The notice given remains misleading.
Affirmed in part; reversed in part and remanded.