Eng v. Wallowa County

ORS 197.835 authorizes LUBA to reverse or remand a land use decision if the local government failed to follow applicable procedures in deciding a matter, and that failure prejudiced substantial rights of the petitioner.

In 2013, Stephen Bilben applied to the county for a zoning permit for a dwelling on the subject property. This permit was later approved. In 2015, Bilben hired an excavator to install a domestic water well on his property. Over the course of construction, the excavator needed to use portions of an easement on petitioner’s property. In 2016, petitioners had conversations with a utility company representative about the easement over the Eng property to serve development on Bilben’s parcel. After conducting title research into the utility easement, petitioners discovered that the easement did not run over the property. Petitioner subsequently appealed the 2013 zoning permit.

On the second assignment of error, petitioner argues that their appeal was incorrectly dismissed. Petitioners argue that they were not given sufficient notice of the 2013 appeal, thus they are allowed to appeal directly to LUBA. The county argues that petitioners were put on constructive notice because they would have been able to see construction and utility trucks going to and from the subject property. LUBA agrees with petitioners, stating that the county misapplied the “should have known” language set out in WCDC 7.020.01.B(02). Petitioners would have had constructive notice if they would have seen trucks going to and from the property, as opposed to what they actually saw. Petitioners only saw trucks going to and from the general direction of the property. Thus, LUBA remands to allow petitioners a chance to have their appeal heard by the County. REMANDED