Riverview Abbey Mausoleum Company v. City of Portland

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Municipal Law
  • Date Filed: 01-04-2019
  • Case #: 2018-016/017
  • Judge(s)/Court Below: Opinion by Zamudio
  • Full Text Opinion

(1) The PCC allows a local appellant to submit fee waiver and appeal requests concurrently and requires neither that a fee waiver decision be signed nor noticed, and (2) an organization’s failure to follow its bylaws in voting to file a local appeal provides no basis for reversal or remand.

Petitioner appeals two city decisions granting a local appeal fee waiver to intervenor and denying petitioner’s application to subdivide property. The subject property is zoned Single Dwelling Residential 10,000 (R10) with environmental protection and conservation overlays. Petitioner filed an application to subdivide the property into 21 lots for single-dwelling residences, in addition to requesting an environmental review, modifications, and violation review. The hearings officer approved these applications with conditions. Subsequently, intervenor neighborhood association submitted an appeal and fee waiver request. Deciding that the appeal fee had been waived and that the local appeal was valid, the city denied most of petitioner’s applications. These appeals followed.

Under the first assignment of error, petitioner argues the city lacked jurisdiction over the local appeal and that the appeal fee was improperly waived. Specifically, petitioner argues the appeal was invalid under Portland City Code (PCC) 33.730.030(H)(1) because the fee waiver was not approved prior to the appeal deadline and that the fee waiver decision was invalid because the appeal form was neither signed nor noticed as required under PCC 33.730.015(F). Petitioner also argues the city council did not make adequate findings supported by substantial evidence that the appeal was perfected. LUBA agrees with the city that, while the prior code required fee waivers to be approved before the appeal deadline, the current code and administrative rules allow a local appellant to submit fee waiver and appeal requests together. The city’s code also does not require that fee waiver decisions be signed, and code provisions requiring notice do not apply to such decisions. Furthermore, while the fee waiver form did not indicate whether it had been waived, the fact that the appeal form indicated as such was adequate to support the city’s decision to hear the appeal. Thus, LUBA concludes the city did not misconstrue the applicable law and relied on substantial evidence in determining that intervenor’s local appeal was timely and valid.

In the second and third assignments of error, petitioner argues that city staff erred in approving the fee waiver request because intervenor did not follow its bylaws in voting to file the local appeal. LUBA concludes that, while PCC 33.730.030(H)(1) and the applicable administrative rule require that a fee waiver form contain a signature confirming that the vote to appeal was done in accordance with the organization’s bylaws, they do not require that an organization submit confirming evidence or that city staff independently evaluate such conformity. Thus, even if petitioner’s allegation is true, that fact provides no basis for reversal or remand. The second and third assignments of error are therefore denied and the city’s decision is AFFIRMED.

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