- Court: Oregon Land Use Board of Appeals
- Area(s) of Law: Municipal Law
- Date Filed: 05-19-2017
- Case #: 2016-104
- Judge(s)/Court Below: Opinion by Ryan
- Full Text Opinion
Intervenor applied for site plan review to construct a 101-room hotel on its 2.2-acre property. The hearings officer held a hearing and stated that intervenor did not comply with EC 7.280, which requires a street plan that ensures street trees will be planted and established in accordance with certain standards, procedures and policies. Intervenor argued that EC 7.280 does not apply to its application because the application does not propose the “creation of a new street.” The hearings officer disagreed and concluded that EC 7.280 applies to existing streets too. Intervenor appealed the decision to the planning commission, and the application was approved. Petitioner now appeals the planning commission’s decision.
In its first assignment of error, petitioner argues that that the planning commission exceeded its authority under EC 9.7655(3) when it overruled the hearing officer’s determination. EC 9.7655(3) requires an appeal to include a statement of issues on appeal, be based on the record, and be limited to the issues raised in the record that are set out in the filed statement of issues. Petitioner argues that intervenor’s filed statement of issues does not raise any issue regarding the interpretation of EC 7.280 or argue that the hearings officer erred in applying EC 7.280 to intervenor’s application. LUBA agreed with petitioner, stating that it is clear intervenor did not challenge the merits of the hearings officer’s interpretation of EC 7.280 to apply where no street is created, but instead argued only that the hearings officer erred in concluding that intervenor had not demonstrated compliance with EC 7.280, under that interpretation.
Since LUBA sustained petitioner’s first assignment of error, it did not address petitioner’s fourth assignment of error, where petitioner argued that the planning commission improperly construed EC 7.280 to apply only to applications that propose the construction of a new street. On remand, the planning commission must determine whether the hearings officer erred in determining that there is not sufficient evidence in the record to demonstrate that EC 7.280 is met. REMANDED.