A. Procedure for Submitting Documents.

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1 How to Avoid a LUBA Remand OAPA 2018 Legal Issues Workshop December 7, Michael Holstun Retired LUBA Referee Michael Robinson Schwabe Williamson Wyatt There is no silver bullet that will guarantee you will avoid a LUBA remand if your land use decision is appealed. The laws are simply too complex, and the opportunities to commit error are too numerous. But there are some things you can do to dramatically improve your chances of prevailing in an appeal. And even if you do not prevail in the appeal, there are some things you can do to improve your chances of adopting a defensible decision following a LUBA remand. There typically are several key players in contested local land use proceedings who have very different interests and goals. As a planner representing local government or a planner representing a permit applicant, trying to accommodate as many of those legitimate interests as possible, without jeopardizing your client s interests, requires a fair amount of skill and diplomacy. This is an attempt at identifying some tools for walking that fine diplomatic line in a way that will improve your chances on appeal. THE RECORD SUPPORTING THE LAND USE DECISION With minor exceptions, LUBA review is limited to the record that a local government compiles in adopting a land use decision. ORS (2)(a). For that reason, building an adequate record is a critical component of adopting a defensible land use decision. A. Procedure for Submitting Documents. Under OAR (1)(b), the record includes [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 * * *. Are there rules in the applicable land use regulations for how to submit documents and who those documents need to be given to? If so, follow those rules. If not, make sure all parties understand how the local government expects

2 documents to be submitted for the record. If documents are not submitted in the proscribed manner, decide whether to accept or reject the documents for the record. If they are to be allowed notwithstanding the failure to submit them in the prescribed way, make sure no one is prejudiced by that deviation from the required procedure. When the local land use proceeding moves from an initial phase to the next phase make sure all parties understand whether the next phase is limited to the evidentiary record compiled in the initial phase or whether the new phase will allow new evidence. B. The Local Government Decision Under LUBA s rules, the decision and supporting findings should be the first document(s) included in the record. OAR (1)(a). The common practice of incorporating other documents into a land use decision as supporting findings is discussed further below. If that is done, consider including all the incorporated documents with the main decision, as attachments to the first record document, including all maps and site plans referenced in the decision. Alternatively, the table of contents entry for the decision should describe where all incorporated documents can be found in the record. C. Notices Under LUBA s rules, notices of proposed action and hearings must be included in the record. OAR (1)(d). The included notices should include evidence of when and how the notice was given and to whom the notice was given. Whether required notices were given in the way required by law is frequently an issue at LUBA and if the required evidence to answer such challenges is missing, remand is likely. D. Announcements at Commencement of a Hearing Under ORS (5) an announcement is required: (1) identifying the approval criteria, (2) calling for testimony to be directed at the criteria and (3) stating that failure to adequately raise an issue will preclude raising the issue at LUBA. That announcement must be made at the commencement of a hearing.

3 Make sure the minutes, a transcript or other evidence in the record establishes that the required announcement was made. E. Whether to Withdraw a Decision for Reconsideration After it Has Been Appealed to LUBA Local governments have a unilateral right (other parties need not agree) to withdraw a decision for reconsideration, provided they do so before the date the record is due. ORS (13)(b). Since the petition for review will not have been filed at this point, the local government cannot be sure what the issues on appeal will be. But in some cases, the appellant s concerns may be well known. If that is the case, and if a decision can be modified to satisfy those concerns, or revised findings can be adopted to more adequately explain why the concerns are unwarranted, withdrawal of a decision for reconsideration might save the time effort and expense of a full LUBA appeal. Even after the record has been filed, a voluntary remand may be possible, but all parties must agree and stipulate to remand. Dexter Lost Valley Community Association v. Lane County, 255 Or App 701, 300 P3d 1243 (2013) (March 20, 2013). A voluntary remand may be preferable to attempting to defend an appeal where the petition for review has demonstrated an error that LUBA is likely to sustain, if the appellant agrees to the voluntary remand. THE DECISION/FINDINGS A. Incorporated findings and staff reports. Findings are the written explanation for why the decision complies with all applicable approval criteria and also the written response to issues raised during the local proceedings. It is perfectly permissible to draft a land use decision in a way that includes the supporting findings as part of the decision or to incorporate other documents as supporting findings. But the decision must clearly state what other documents are incorporated as supporting findings. For example: The planning commission staff report dated September 11, 2001 is adopted as supporting findings for this decision. The test that LUBA applies where efforts to incorporate other documents as findings are not so clear is set out in Gonzalez v. Lane County, 24 Or LUBA 251, (1992) (November 1992).

4 But it is generally dangerous to casually incorporate multiple documents as supporting findings, on a general theory that more findings necessarily are better. One of the primary dangers in this practice arises in lengthy complicated cases where, for example, the position in staff reports may have changed over time so that wholesale adoption of staff reports as findings can result in inconsistent findings. It also can be risky to adopt documents that were not prepared in the form of findings, for example a letter prepared by a party that may include unnecessary arguments or problematic text. The better practice is to extract the part of such document that you want to adopt as findings and adopt only that part as findings. B. Do not Ignore Code/Plan Ambiguities One of the primary purposes of findings is to identify applicable approval criteria. If issues arise concerning the meaning of a criterion, or whether a particular approval criterion is applicable, address that ambiguity directly in the decision s findings. Although such interpretive findings are particularly important when the local government is the final decision-maker and entitled to the Siporen v. City of Medford, 349 Or. 247, 243 P3d 776 (2010) (November 18, 2010) deferential standard of review on appeal, such findings are also important even when the final decision-maker is not the local government. LUBA tends not to question lower level decision maker interpretations, if they are reasonable, even if there are other reasonable interpretations. And if the text is extremely ambiguous, LUBA may remand for an initial interpretation by the local government rather than try to resolve the ambiguity itself. C. Be Aware of Overlapping Laws Be aware that, as a general rule, constitutions trump statutes, statutes trump statewide planning goals and administrative rules, state law trumps local law, and the comprehensive plan controls in cases of conflicts with ordinances. As with most general rules there are lots of qualifications and some exceptions. For example, the heirachically superior statewide planning goals generally do not apply after acknowledgment. But even that general exception has exceptions, for example where the statewide planning goals or DLCD administrative rules have been amended and conforming local law amendments have not yet been adopted, the amended goals and rules apply directly to acknowledged plans and land use regulations. ORS (3).

5 The most common problem arises where a statute conflicts with local law, either because the local government was unaware of the statute at the time the local law was adopted or because the statute has been amended to impose a requirement that is inconsistent with local law. LUBA sees this frequently when local regulations conflict with the needed housing statutes clear and objective standards requirement. ORS (4). When arguable statute/local law conflicts are identified during land use proceedings take them seriously and address all applicable state and local standards in the decision s findings. And when faced with such arguable conflicts consider adopting alternative findings, for example: Plan Goal 8 does not apply in this case (because it is not clear and objective as required by statute), but in the alternative, if it does apply, Plan Goal 8 is satisfied because.. A related problem can occur when a property has been subject to prior land use approvals that imposed conditions that are still in effect. A review of historical files will be necessary to ferret out such conditions and make sure they are complied with if they remain in effect. PROCEDURAL ERRORS Under ORS (7)(a)(B) a procedural error will provide a basis for remand if it results in prejudice to a party s substantial rights. Those substantial rights include: the rights to an adequate opportunity to prepare and submit their case and a full and fair hearing. Muller v. Polk County, 16 Or LUBA 771, 775 (1988) (June 1988). A party must identify the procedural error to the local government so that it has an opportunity to correct the procedural error. And if the local government fails to do so, a party at LUBA must identify how the procedural error prejudiced its substantial rights. A. Quasi-Judicial Land Use Proceedings The statute governing the rights of parties and how the local government is required to go about continuing local quasi-judicial evidentiary hearings, or leaving the record open for submittal of new evidence and any rebuttal rights submittal of that new evidence might create, along with the right of the applicant for final legal argument--and how all of these activities affect the 120/150 day rule--are complex. Read and become familiar with ORS (4)-(7). B. More Process than is Required

6 It is almost never error to provide more process than is minimally required. If a procedurally irregularity occurs during or after a hearing and providing more process will avoid prejudice to a party s substantial rights, it is prudent to provide that additional process if time permits. For example, if the proceeding has progressed to a phase where only rebuttal evidence is allowed, but a party submits arguably new non-rebuttal evidence with its rebuttal evidence, it may be prudent to allow time for parties to rebut the arguably new evidence. Since most land use regulations draw a distinction between and have adopted different procedures for legislative and quasi-judicial decision, it may be necessary to decide whether a decision will be legislative or quasi-judicial. The factors set out at Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm., 287 Or 591, 601 P2d 769 (1979) for making that distinction are imprecise and subjective. Consider a hybrid procedure designed to avoid prejudice to any party if the case is an important one and the legislative vs. quasi-judicial nature of the decision is in dispute. C 120/150 Day Rule ORS and require that local governments take final action with 120 or 150 days of a complete application (including resolution of all local appeals), depending on the kind of permit, zone change or limited land use decision. Those statutes also impose what is referred to as the fixed goal post rule, which gives the applicant a right to have the application reviewed for compliance with the local land use standards in effect on the date the application was first submitted. The proper operation of the fixed goal post statute is a frequent issue at LUBA, where an applicant has submitted his or her application shortly before a change in local land use laws, in an attempt to avoid those new land use laws. To get the benefit of the fixed goal post, the applicant must submit a complete application. That application could be complete when submitted, but more commonly the local government gives notice of what additional information is needed within 30 days of the date the application was first submitted. The applicant then has three options, if he or she wants to proceed under the fixed goal post rule and 120/150-day deadline for final action: 1. Submit all the information identified by the city/county. 2. Submit some of the information identified by the city county and give notice that the remaining information will not be provided.

7 3. Give notice that the applicant will not submit any of the information identified by the city/county will be submitted. ORS (2)(a)-(c); (2)(a)-(c). Once the applicant takes one of the three steps identified above, the city/county has 120 or 150 days to adopt a final decision, and if it fails to do so, the applicant may file a petition for writ of mandamus with circuit court to compel the city/county to approve the permit. The wisdom of seeking a writ of mandamus will depend on a number of variables. The 120/150-day deadline can be extended up to 215 or 245 days if the applicant requests. ORS (5) (215 days); (5) (245 days). If the applicant fails to take one of the above three steps within 180 days, the application is deemed void on the 181 st day. ORS (4); (4). There are a number of harsh consequences for permit applicants that fail to timely take one of the three steps set out in ORS (2)(a)-(c) and (2)(a)- (c), primarily loss of the fixed goal post and the requirement for a new permit application. Depending on the circumstances in particular cases, operation of the fixed goal post statutes can be quite complicated. For a case that demonstrates how complicated it can be to determine whether the applicant has taken one of the three required steps to make the application complete and secure the benefit of the fixed goal posts see Bora Architects v. Tillamook County, 76 Or LUBA 330, affirmed 291 Or App 537, 422 P3d 412 (2018) (LUBA s Opinion November 2017; Court of Appeals Opinion May 2, 2018).