LUBA to rule on Brookside Development on April 24

The Land Use Board of Appeals said it would render a decision in an appeal of a Sweet Home City Council approval of the proposed Brookside Development on May 24.

LUBA heard arguments from the Neighbors for Sensible Development, primarily a group of neighbors who opposed the proposed development, and from Linn County Affordable Housing (LCAH), which intervened on behalf of the City of Sweet Home. The City of Sweet Home did not hire an attorney or become involved in the appeal process beyond providing records and paperwork required by law.

LCAH proposed to create a 23-unit planned unit development (PUD) at the south end of Sunset Lane, just west of Strawberry Park for low- to moderate-income persons. The development would include 10 duplex units for seniors and disabled persons and 13 single-family homes.

Neighbors for Sensible Development appealed three items. First, they claim that the Sweet Home Planning Commission’s preliminary, pre-application preliminary approval of the proposal in concept was a final land use decision, and they had no opportunity to speak at that meeting. They also appealed the approval of the planned unit development and the related subdivision by the City Council.

The preliminary approval by the Planning Commission is a prerequisite to moving on through the PUD process, attorneys representing Neighbors for Sensible Development argued. The Neighbors claimed seven assignments of error, for which LUBA could remand the decisions if it rules in favor of the Neighbors.

The first assignment of error was that the City of Sweet Home failed to provide notice of its decision and to provide an opportunity for local appeal of that decision. The assignment referred to the preliminary approval by the Planning Commission.

The second assignment of error was that the city failed to provide a written order explaining its decision to all appropriate parties, failing to adopt any findings of fact in the preliminary approval.

Third, the Planning Commission’s decision in the PUD preliminary approval is not supported by substantial evidence. Without a written final order, no public hearing and no adopted findings and conclusions, it is nearly impossible to determine what criteria and evidence were used to reach the decision.

Fourth, the City of Sweet Home failed to provide timely notice to the Department of Land Conservation and Development, which is required at least 45 days prior to the first evidentiary hearing on adoption.

Fifth, the Neighbors claim that the Planning Commission’s decision in its public hearing, held after the preliminary approval and the application is completed, is not supported by substantial evidence in the whole record. This claim lies in the Neighbors’ argument that the preliminary approval was invalid because a required element of the general development plan is that it be in conformance with the preliminary approval. In this case, they said, it cannot be established from the record because the preliminary approval is not supported by the record.

Sixth, the Neighbors asserted that the findings in the case are inadequate because they do not address relevant issues raised during the local proceedings, they fail to connect facts on the record to conclusions by the city.

Seventh, the Neighbors claim they were denied an opportunity to be heard in violation of their right to due process of law. In the preliminary approval, the received no notice, and there was no hearing. The notice for the Planning Commission’s subsequent public hearing was inadequate, and those who wished to speak against the project were asked to wait until 1 a.m. and then denied an opportunity to speak when the meeting was adjourned. In public hearings, testimony was taken in favor of the application first.

“This case is a sad commentary on land use planning as it is conducted in Sweet Home,” Neighbors’ attorney Sydney Brewster said. “Rules and statutes are ignored and the rights of the public are trampled upon. Even when it is clear that errors were made, city refused to stipulate to a voluntary remand thereby requiring petitioner to expend time, energy and money to defend their rights and force city to abide by the law as it should have been done from the beginning.”

LCAH’s attorney argued that the preliminary approval was not a final decision by the city. There was no written order, which is a requirement of a final decision. The preliminary approval was not a binding decision, an the approval in no way gave LCAH the ability to begin building.

Even if LUBA does rule that the preliminary approval constituted a final decision, attorney Tad Everhart said, subsequent decisions, also on appeal, by the city in the process have superseded that approval.

“When the Planning Commission in the presented case granted ‘approval in principal,'” Everhart said. “There was no application of a land use regulation to a discrete land use question. The planning commissioners did not understand themselves to be making a final decision. There was no disclosure of conflicts of interest. The decision had not lasting effect other than to allow the applicant to go forward. The decision could not be final since final decisions of approval can only be made by the City Council.”

Everhart also highlighted a difference between the word compliance and conformance. Conform is less exacting than comply, encompassing similarity while compliance requires more.

Brewster told LUBA that the second definition in one dictionary defined conformance with the word compliance.

In response to the first three assignments of error, Everhart said, the preliminary approval was not a permit. Petitioners did not comply with the requirements for a permit decision. It was not since no development was possible afterward.

In response to the fourth, LCAH argued that the Neighbors failed to raise the issue before and that the legislature in establishing the requirement for noticing DLCD did not intend to include PUDs or subdivisions.

Neighbors said they never had the opportunity to raise the issue previously because they were unaware of the issue until later.

The fifth argument, LCAH argued, is wrong because the preliminary approval is not an approval criterion and the petitioners did not raise the issue previously.

LCAH argued that the sixth argument should be disregarded because it does not identify which approval criteria lack adequate findings or which findings are not supported by substantial evidence in the record.

Seventh,Everhart told LUBA that the Neighbors did have the opportunity to be heard. When the Neighbors’ attorney told the council that failed to list a number of approval criteria, the city mailed amended notice, containing nearly all the approval criteria suggested by the attorney.

The Neighbors were able to continue their presentation almost a month later, Everhart said.”Since petitioners were aware of all the approval criteria and participated effectively in the local hearing, there is no prejudice to their substantial rights….

“When members of the audience complained about the procedure and not being able to voice their opposition the first night, respondent’s City Council president pro tem explained that the council was bound by (ordinance). Petitioners presented their evidence and arguments first in their appeal of the subdivision approval. Respondent allowed petitioners’ attorney to speak out of order the first night of the public hearing.”

Individual members of the Neighbors addressed the Planning Commission three times and the City Council five times. The Neighbors’ attorney spoke seven times throughout the process, Everhart said.

“Respondent’s decisions are supported by detailed findings supported by the substantial evidence in the record,” Everhart said. “Notwithstanding petitioners’ determined opposition to affordable housing in their neighborhood, the Brookside proposal clearly meets respondent’s approval criteria. LUBA should affirm Respondent’s approvals.”