Talbott v. City of Happy Valley

ORS 197.763(3)(b) does not require that the city list all potentially applicable state statutes in its notice of hearing, and the omission of Oregon’s needed housing statute (ORS 197.303) is not a procedural error that prejudices the right of the petitioner to submit evidence and testimony related to “needed housing,” and does not provide a basis for remand of the decision.

The city approved intervenor-respondent’s, Scouters Mountain, LLC (intervenor), planned unit development (PUD) application to develop 595 single-family residential detached lots. At intervenor’s proposal, the city imposed, as a condition of approval, adding a new traffic signal and a new collector road, which would replace the current private driveway that provides property access.

Annette Talbott and James Jordan (petitioners) appealed the city council’s approval, arguing four assignments of error, all of which LUBA denied. In their first assignment of error, petitioners argued that the city committed procedural error that prejudiced their substantial rights because “the city’s notice of hearing or staff reports failed to list ORS 197.303 as applicable criteria.”Intervenor responded, and LUBA agreed, that the city is not required to list all potentially applicable state statutes in its notice of hearing, and therefore, omission of ORS 197.303 was not procedural error.

In their second assignment of error, petitioners argued that since the PUD application was submitted with the Transportation System Plan (TSP) Amendment application, the provisions at Happy Valley Land Development Code (LDC) 16.67.060, and the Transportation Planning Rule (TPR) required an analysis of traffic to be generated by the PUD to determine whether the PUD “significantly affects a transportation facility” in accordance with OAR 660-012-0060. LUBA agreed with the city council, finding that the TPR did not apply to the PUD application, as the TPR applies to “an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation.” LUBA determined the application did not fall in any of these categories.

In their third and fourth assignments of error, petitioners argued that the city council’s adopted findings were inadequate for purposes of Happy Valley Comprehensive Plan (HVCP) Policy 28, and Statewide Planning Goal 7. LUBA denied these assignments of error. AFFIRMED.