Mackenzie v. City of Portland

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Appellate Procedure
  • Date Filed: 03-10-2015
  • Case #: 2014-089/099
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

When a petitioner withdraws a petition for appeal, the arguments made in that appeal are waived with respect to a different petitioner who attempts to incorporate those arguments without having preserved the issue themselves.

Portland Japanese Garden Society (the Society) operates the Japanese Garden in Washington Park. The Society applied for a conditional use permit and environmental review to expand the site by 3.46 acres, replace and construct buildings, and add a perimeter fence that would close off access to a spur trail. The hearings officer approved the application. Mackenzie appealed to the city council, who approved the application with conditions. Mackenzie the appealed to LUBA. LUBA first dismissed a consolidated appeal for failure to timely file. Petitioners had attempted to claim that they had been entitled to notice which they did not receive under ORS 197.763(2)(a) as owners of property 100 feet from Washington Park. The City argued, and LUBA agreed, that the city’s designation of 25 acres of the park as the notice area rather than the entire park was sufficient, and the city’s reliance on tax lot boundaries to determine the bounds of that area was reasonable.

Mackenzie raised a number of challenges under the Portland City Code to the approval of the permit, arguing that the findings were inadequate and not supported by substantial evidence. These arguments challenged findings relating to loss of the spur trail as it impacted open space requirement and livability, minimizing loss of resources, detrimental impact, transportation impact, and square footage. All of these challenges were denied by LUBA finding substantial evidence or waiver issues. Regarding the transportation challenge, LUBA found that the argument had been made by a previous petitioner who had withdrawn its appeal. The board held that the withdrawal of that appeal had waived that argument, and that Mackenzie could not now make the argument for the withdrawn petitioners. AFFIRMED.