McAndrew v. Washington County

In order to bring assignments of error to LUBA, petitioners must raise their issues during the initial proceedings, otherwise, they are waived, under ORS 197.835(3) and ORS 197.763(1).

Intervenor-respondent Look Construction, LLC (“Intervenor”) applied for a Drainage Hazard Area Alteration to construct a new 2,800 square-foot single-family residence. The property in questions is a .24 acre parcel of land located in unincorporated Washington County. All but the northern 45 feet of the property is designated as a Statewide Planning Goal 5 resource. The county planning staff issues a written decision approving intervenor’s application, and petitioner filed a written appeal. After the county hearings officer denied petitioner’s appeal, this appeal followed.

In petitioner’s second and third assignments of error, petitioner claims that the hearings officer erred in his interpretation and application of CDC 421-8.1and CDC 422-3.3(A)(6), which both prohibit the construction of new houses in a flood area if there is a more suitable site outside the flood area, and the alteration of the vegetation or terrain within a riparian corridor unless there is a suitable building site outside the riparian corridor, respectively. The hearing officer found that intervenor’s application was in compliance with both codes. Intervenor challenges petitioner’s assignments of error, claiming that petitioner failed to raise any issues under both codes during the initial proceeding, and are therefore waived pursuant to ORS ORS 197.835(3) and ORS 197.763(1). Petitioner believes that although it did not raise any issues under the codes during the initial proceeding, because the county planning staff report raised general issues concerning the codes, petitioner may bring their assignments of error. LUBA agrees with intervenor, stating a petitioner may not rely upon the staff report’s citation to statutes or codes in order to bring assignments of error. Petitioner must raise these issues during the initial proceeding, otherwise, they are waived. LUBA denies the second and third assignments of error. AFFIRMED.