IN THE COURT OF APPEALS OF THE STATE OF OREGON

RIVERVIEW ABBEY MAUSOLEUM

COMPANY, LAND USE BOARD OF
APPEALS
Petitioner,
2018016, 2018017
vs.
A169938
CITY OF PORTLAND and
SOUTH BURLINGAME
NEIGHBORHOOD ASSOCIATION,

Respondents.

PETITIONER’S OPENING BRIEF

AND EXCERPT OF RECORD
(EXPEDITED PROCEEDING UNDER ORS 197.850 & ORS 197.855)

Christopher P. Koback, OSB # 913408 Lauren A. King, OSB # 123632

Hathaway Larson LLP
1331 NW Lovejoy Street, Ste. 950
Portland, OR 97209
Telephone: (503) 303-3101
chris@hathawaylarson.com
Attorney for Petitioner Riverview
City Attorney’s Office
1221 SW Fourth Avenue, Suite 430
Portland, OR 97204
Telephone: (503) 823-4047
lauren.king@portland.or.gov
Attorney for Respondent City of Portland

Carrie A. Richter, OSB # 003703

Bateman Seidel Miner
888 SW 5th Ave., Suite 1250
Portland, OR 97204
Attorneys for Respondent SBNA

February 2019
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TABLE OF CONTENTS

Page
I. STATEMENT OF THE CASE ...................................................................... 1

A. Nature of the proceeding and relief sought.............................................. 1

B. Nature of the Agency Order for which review is sought ......................... 1
C. Statutory basis of jurisdiction .................................................................. 2

D. Effective date of LUBA’s Order .............................................................. 2

E. Questions presented on appeal ................................................................. 3
F. Summary of Petitioner's arguments ......................................................... 3
G. Statement of facts .....................................................................................8
II. PETITIONER’S FIRST ASSIGNMENT OF ERROR ................................12

A. Preservation of error ..............................................................................12

B. Standard of review. ................................................................................12

C. Argument ...............................................................................................14

III. PETITIONER’S SECOND ASSIGNMENT OF ERROR ...........................36

A. Preservation of error ..............................................................................36

B. Standard of review. ................................................................................37

C. Argument ...............................................................................................38
IV. CONCLUSION ............................................................................................43
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EXCERPT OF RECORD

1. LUBA Final Order and Opinion dated January 4, 2019 ....................... ER-1-28

2. Type III Decision Appeal Form (LUBA Rec. 159-160) .................. ER-29-30

3. Type III Decision Appeal Fee Waiver Form (LUBA Rec. 161) ...... ER-31-32

4. Robert Griffith Letter dated January 12, 2018 (LUBA Rec. 165-170) ER-33-
37

5. Fee Waiver Instructions (Rec. 3780) ..................................................... ER-38

6. Rebecca Esau Email dated January 19, 2018 (LUBA Rec. 236) .......... ER-39

7. Affidavit of Stephen Griffith (LUBA Rec. 239-242) ....................... ER 40-43

8. Decision Notice LU-17-105503 AP (LUBA Rec. 271) ........................ ER-44

9. Fee Waiver Request Form 4/27/18 (LUBA Rec. 291-292) .............. ER-45-46
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APPENDIX

1. PCC 33.730.030 Type III Procedure .................................................. App. 1-5

2. Urban Resources, Inc. v. Portland, LUBA 81-136 ........................... App. 6-16

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TABLE OF AUTHORITIES

Page

Cases

1000 Friends of Oregon v. Metro, 174 Or App 406 (2001) ........................ 30-31

Alliance for Responsible Land Use v. Deschutes County, 149 Or App 259
(1997) ..................................................................................................................24

Babbitt v. City of Portland, 41 Or LUBA 151 (2001) .......................................32

Columbia Riverkeeper v. Clatsop County, 238 Or App 439 (2010) ............12, 37

Dickas v. City of Beaverton, 17 Or LUBA 578 (1989) .....................................38

Gilmour v. Linn County, 279 Or App 584 (2016) ............................................13

Golden v. City of Silverton, 58 Or LUBA 399 (2009) .......................................25

Green v. Douglas County, 245 Or App 430 (2011) ...................................19, 24

Le Roux v. Malheur County, 30 Or LUBA 268 (1995) .....................................38

Mountain West Investment Corp. v. City of Silverton, 175 Or App 556 (2001)
.......................................................................................................................12, 37

Ramsey v. City of Portland, 29 Or LUBA 139 (1994) .................................26, 32

Siporen v. City of Medford, 349 Or 247 (2010) ...........................................19, 21

South of Sunnyside Neighborhood Association League v. Board of

Commissioners of Clackamas County, 280 Or 3 (1977) ...................................31

St. John’s Neighborhood Association v. City of Portland, 38 Or LUBA 275

(2000) ..................................................................................................................32

State v. Gaines, 346 Or 160 (2008) ............................................................. 24-25

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Urban Resources, Inc. v. City of Portland, 5 Or LUBA 299 (1982) ................ 30

Vanspeybroek v. Tillamook County, 51 Or LUBA 546 (2006) ..........................32

Younger v. City of Portland, 305 Or 346 (2008) ................................................42

Zimmerman v. LCDC, 274 Or App 512 (2015) ...........................................12, 37

Statutes

OAR 661-010-0010(3) .....................................................................14, 15, 38, 39

OAR 661-010-0071(2)(a) ..................................................................................38

ORS 197.825(1) ............................................................................................34, 38

ORS 197.829 ................................................................................................12. 14

ORS 197.835(9)(C) ......................................................................................38, 48

ORS 197.835(9)(D) ...........................................................................................38

ORS 197.850(3) ...................................................................................................2

ORS 197.850(3)(a) ...............................................................................................2

ORS 197.850(9) ...........................................................................................12, 37

ORS 197.850(9)(a) ..................................................................................... 12, 37

ORS 197.850(9)(C) ........................................................................................... 13

Portland City Code

PCC 33.700.070.D .............................................................................................25

PCC 33.730.020 .................................................................................................19

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PCC 33.730.030 .....................................................................................20, 27, 36

PCC 33.730.030.F ............................................................. 5, 8, 14, 20, 25-26, 28

PCC 33.730.030.H .......................................................................5, 14, 20, 26, 28

PCC 33.750 ....................................................................................................... 26

Miscellaneous

BDS Administrative Rule ENB 13.25 ...............................................................15

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I. STATEMENT OF THE CASE

A. Nature of the proceeding and relief sought.

Petitioner Riverview Abbey Mausoleum Company (“Petitioner”) seeks

judicial review of the Final Opinion and Order of the Land Use Board of Appeals

(“LUBA”), LUBA No. 2018-016/017, dated January 4, 2019 (“LUBA’s Order”).

ER 1-28. Petitioner seeks reversal of LUBA’s Order for the reasons set forth

herein.

B. Nature of the Agency Order for which review is sought.

A City of Portland (the “City”) hearings officer approved Petitioner’s land

use application. South Burlingame Neighborhood Association (“SBNA”)

attempted to perfect a local appeal of that decision to council before the appeal

deadline. SBNA did not include the required fee. It filed its appeal form ninety-

one (91) minutes before the deadline and asked the City’s Director of Bureau of

Development Services (“Director”) (“BDS”) to approve a fee waiver, a substitute

for the mandatory appeal fee. The City never produced a decision approving

SBNA’s request. It proceeded with the appeal nonetheless.

Petitioner appealed the council’s decision to LUBA because SBNA failed

to timely perfect the appeal by not paying the fee or obtaining a valid fee waiver.

LUBA No. 2018-016. Even though the City never produced a decision,

Petitioner, as a precaution, also separately appealed any decision the City may
 2

have made approving the SBNA’s fee waiver request. LUBA No. 2018-017.

In its Final Order, LUBA affirmed the City’s decision to grant the SBNA’s

appeal and reverse the hearings officer’s decision. LUBA also affirmed SBNA’s

fee waiver request, although it too never identified a written decision that applied

any criteria or adopted any findings. Petitioner is appealing LUBA’s decisions

in both LUBA cases.

C. Statutory basis of jurisdiction.

This Court has jurisdiction to review LUBA’s Order pursuant to ORS

197.850(3). Petitioner has standing to appeal LUBA’s Order because it was a

party to the proceeding that led to LUBA’s Order. Therefore, a decision from

this Court will have a practical effect on Petitioner’s interests.

D. Effective date of LUBA’s Order.

LUBA’s Order was final on January 4, 2019. ER-1. The Petition for

Judicial Review was timely filed and served on January 22, 2019. ORS

197.850(3)(a). (Rec. 1-3).

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E. Questions presented on appeal.

1. Did LUBA err in attributing a decision to city council that it

expressly elected not to make, and then, in applying the deferential standard in

ORS 197.829(1) to that decision?

2. Can LUBA’s finding that there is substantial evidence that BDS

approved a fee waiver substitute for a final, effective reviewable decision?

3. Assuming someone at BDS approved the SBNA appeal fee waiver

request, did LUBA err in affirming that unwritten, undated decision that had no

findings and was never signed by any decision maker?

F. Summary of Petitioner’s Arguments.

1. First Assignment of Error.

LUBA erred by attributing a decision and interpretation to city council that

it expressly declined to make. LUBA determined that a decision to grant or deny

an appeal fee waiver is a land use decision. Its rules define such a decision as

one in writing, signed by a decision maker. The city council delegated the fee

waiver decision making to the Director of BDS. LUBA agreed, concluding that

the only decision the City identified was an appeal form with a box next to text

that stated “Fee Waived.” LUBA determined that that form was an unsigned

interlocutory decision.
 4

LUBA determined that the interlocutory “decision” became final when

council made a decision on the merits of the SBNA appeal. LUBA ignored the

fact that it previously determined a Director decision on fee waivers was final

with no local appeal and that council expressly decided not to consider the

interlocutory decision LUBA identified. LUBA failed to explain how council

could finalize a non-final, interlocutory decision it expressly decided not to

consider.

LUBA attributed an interpretation to council that the SBNA appeal was

perfected when SBNA submitted an appeal form and a request for a fee waiver.

Yet, LUBA acknowledged that a mere request does not finally perfect an appeal

and a final decision approving the request is required, just not before the appeal

deadline. The City never produced a decision approving a fee waiver, much less

one before the appeal deadline. Council did not finalize a fee waiver decision

because it declared only the Director could make that decision and it was outside

council’s review. LUBA failed to explain when and how the Director ever

finalized the “interlocutory” decision.

Council could not have interpreted its code to mean that submitting a fee

waiver request before the appeal deadline perfects an appeal if the Director

eventually makes a final decision to approve the fee waiver. Council expressly

declined to determine the validity of the appeal fee waiver or consider the
 5

necessary issues to make an interpretation. Council never discussed its code or

the issues for that interpretation. Council could not impliedly interpret its code

as LUBA suggested because it made no findings related to how a fee waiver fits

into the City’s code provisions on perfecting appeals. Council found all aspects

of a fee waiver decision are the Director’s, beyond council’s review. Council

only assumed, incorrectly, that the Director made a final decision approving a fee

waiver.

The only interpretation involved in this appeal is an interpretation LUBA

made on its own. LUBA’s interpretation of the code provisions and fee waiver

regulations is legally incorrect. Using plain text, council declared in its code that

an appeal of a Type III land use decision to council is perfected, giving council

jurisdiction, only if the appealing party submits, before the appeal deadline, the

required appeal form and the mandatory appeal fee. PCC 33.730.030.F and H.

Council made it clear that paying the required appeal fee before the deadline is a

jurisdictional requirement. The fee waiver is a substitute for the jurisdictional

fee.

The code does not include any language stating that an appeal is perfected

when an appealing party submits an appeal form requesting the fee substitute.

The administrative rule does not expressly state that submitting a request for a

fee waiver perfects an appeal. The instructions that accompany the appeal form
 6

and fee waiver form, approved by the Director of BDS, clearly state that for an

appeal to be valid, the appellant must, before the deadline, submit the appeal form

with the required fee or a fee waiver that was approved before the appeal

deadline.

The code text, when evaluated in context with the administrative rules, and

fee waiver forms and the instructions support only one conclusion: an appeal of

a Type III decision to council is perfected only if, before the appeal deadline, the

appealing party submits the required form with either the required fee or a fee

waiver that was approved before the appeal deadline.

Moreover, even under LUBA’s interpretation an appeal is not perfected

until the Director makes a decision approving the fee waiver. LUBA failed to

identify a final decision approving a fee waiver. LUBA concluded that the appeal

form with the box checked was not a final reviewable decision, deeming it an

interlocutory, unreviewable decision. LUBA could not however, identify any

action council took to make that decision final and council expressly declined to

consider any aspect of the fee waiver decision. Even under LUBA’s incorrect

interpretation, the SBNA appeal was invalid because it never submitted an appeal

form with an approved fee waiver.

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2. Second Assignment of Error.

LUBA erred in determining that there was a final, reviewable decision by

BDS that was legally correct. As Petitioner discussed in its First Assignment of

Error, council determined that only the Director, or apparently some delegate,

can make a final decision approving a fee waiver. Council did not make any such

decision. The only “decision” on the fee waiver request LUBA ever identified

was the unsigned, undated appeal form, which it characterized as an

interlocutory, non-reviewable decision. Yet, in rejecting Petitioner’s Second and

Third Assignments of Error, LUBA purportedly reviewed some “final,

reviewable” decision approving a fee waiver. LUBA can only review final land

use decisions and erred in reviewing a decision it found not final.

The record does not contain any document where the Director, who is

authorized to make the decision, or anyone else at the City identified the relevant

criteria and made findings that they were satisfied. Petitioner placed substantial

and unrefuted evidence in the record that proved that SBNA failed to meet the

minimum requirements to qualify for a fee waiver. LUBA simply reviewed the

requirements for a fee waiver in the first instance, ignoring that the City never

made any final decision or adopted any findings. LUBA also failed to consider

substantial evidence in the record demonstrating that even if the City had made
 8

the decision LUBA believed it could have made, the decision would have been

clearly wrong.

G. Statement of Facts.

On December 29, 2017, a City hearings officer issued a decision

approving, with conditions, Petitioner’s Type III application for a 21 lot

subdivision. The hearings officer’s decision recited that it would become the

City’s final decision on January 16, 2018, unless a party perfected an appeal of

the decision to the council by 4:30 p.m. on January 12, 2018, the 14th day after

the hearings officer’s decision is mailed. PCC 33.730.030.F. (Rec. 119; LUBA

Rec. 3868).

At 2:59 p.m. on January 12, 2018, ninety-one (91) minutes before the

appeal deadline, Robert Lennox submitted a Type III Decision appeal form. Mr.

Lennox did not include the mandatory appeal fee. Rather, he attempted to rely

on a fee waiver, which is a substitute for that required fee. He submitted a Type

III appeal fee waiver request form that is available to recognized organizations.

Mr. Lennox represented that the appeal was on behalf of the SBNA and that its

vote to appeal was done in accordance with its bylaws. (Rec. 161).

On January 12, 2018, at 4:13 p.m., Stephen Griffith submitted to BDS a

memorandum prepared by Robert Griffith, a part-owner of Petitioner and

member of the SBNA. ER 32-37. Robert Griffith confirmed that the SBNA vote
 9

to appeal the hearings officer’s decision was not conducted in accordance with

the SBNA bylaws. Thus, the vote was not valid and the subsequent appeal was

not submitted on behalf of SBNA. Robert Griffith included copies of the SBNA’s

bylaws and the relevant pages of the Office of Neighborhood Involvement

(“ONI”) minimum standards that are expressly part of the bylaws. (Rec. 165-

177). When Stephen Griffith submitted the opposing material, a BDS

representative advised him that it would be considered as part of the SBNA

waiver request indicating that, in fact, the Director had not made any decision to

approve the request. (Rec. 241).

The City has never produced a written decision approving the SBNA

request, which is not consistent with its practice. It did not notify SBNA of any

decision; it did not send any notice of decision. (Rec. 161). However, as part of

a January 17, 2018 Notice of Type III appeal to council, BDS included the Type

III appeal form that Mr. Lennox submitted at 2:59 p.m. on the appeal deadline.

The appeal form has a box labeled “For Intake Staff Use Only”. In another part

of the Staff Use Only area there is a line that states: “Fee Waived” and two boxes

one with a “Y” and the other with an “N”. (ER 29; Rec. 159). The box on the

appeal form with the “Y” next to the term “Fee Waived” was checked. There is

no indication on the form, and no evidence in the record, to show who made the
 10

check mark or when.1 No representative of BDS signed the appeal form. A

Development Services Technician, Mary Butenschoen, printed her name in the

Staff Use Only box indicating that she received the form at 2:59 pm on January

12, 2018. LUBA concluded that the printed name was not a signature of a

decision maker. (Rec. 193-194).

BDS did not include a copy of the appeal fee waiver form in the Notice of

Appeal Hearing which also had an “Intake Box.” In addition to a place indicating

the form was received, there is a place indicating whether the request was

approved, whether the requesting organization was notified of the decision on the

fee waiver request, and the date and time the notification was provided. (ER 31;

Rec. 161). There are no marks on the fee waiver form to indicate approval of the

fee waiver or notification to the organization. No BDS representative signed that

form either.

On January 18, 2018, Petitioner sent an email to the Director asking for a

meeting to find out the status of SBNA’s fee waiver request, whether Petitioner’s

opposition material had been considered and whether there had been any

1
While the City tried to maintain that Ms. Butenschoen checked the box before
4:30 p.m. on January 12, 2018, LUBA agreed that there is no support for that
contention. Ms. Butenschoen was only scheduled to work until 3:00 p.m. (ER.
42). It is conceivable that a staff person preparing the Notice of Appeal Hearing
on January 17, 2018, noticed that the box was not checked and assumed that,
because they were asked to prepare the notice some decision had to have been
made, or would be made.
 11

decision. (Rec. 236). In response, the Director instructed one of her staff

members to contact Petitioner because she was not aware of the status of the

matter. The Director did not indicate that the appeal form was a decision or that

any decision had been made. (Rec. 236). A BDS staff member contacted

Petitioner, but never provided any document that BDS claimed was a decision on

SBNA’s request. (Rec. 231).

Thus, on February 5, 2018, Petitioner submitted a letter to council

reiterating the points Robert Griffith made in his January 12, 2018, memorandum

to BDS expressing that the City should not approve a fee waiver request. (Rec.

123). On February 14, 2018, council issued draft findings. As LUBA noted,

council did not take any action on SBNA’s fee waiver request, Mr. Griffith’s

comments, or Petitioner’s February 5, 2018 letter. In fact, council expressly

stated that those issues were not before it. (Rec. 8).

The Type III Decision Appeal Form in the record, indicates that
BDS staff waived the fee. [Petitioner’s] argument regarding
validity of an appeal fee waiver is not properly before council as
council has delegated the authority to waive appeal fees to the BDS
Director. BDS Administrative Rule ENB [Environmental Built]
13.25 provides that the decision of the Director of BDS to waive
fees is final. BDS’s decision is separate from Council’s decision
on the application that is subject of these proceedings.
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II. PETITIONER’S FIRST ASSIGNMENT OF ERROR

LUBA’s decision was unlawful in substance in that LUBA

determined the city council made a decision that it expressly
declined to make and then applied deference under ORS
197.829 to affirm a decision that was never made.

A. Preservation of Error.

Petitioner preserved its argument below, arguing to LUBA that the council

lacked jurisdiction to consider the local appeal because SBNA did not pay the

required appeal fee and the City never approved a fee waiver as a substitute for

that jurisdictional requirement. Petitioner argued that SBNA was required to

either pay the appeal fee or obtain a fee waiver approval before the appeal

deadline in order to satisfy the jurisdictional requirements for perfecting the local

appeal. (Rec. 124-143).

B. Standard of Review.

This Court reviews LUBA’s Order to determine whether it correctly

applied substantive or procedural law. ORS 197.850(9); Columbia Riverkeeper

v. Clatsop County, 238 Or App 439, 459, n. 4, 243 P3d 82 (2010). This Court

shall reverse or remand LUBA’s Order if it is unlawful in substance. ORS

197.850(9)(a). The unlawful in substance review standard under ORS

197.850(9)(a) includes “a mistaken interpretation of the applicable law.”

Zimmerman v. LCDC, 274 Or App 512, 519, 361 P3d 619 (2015); Mountain West

Investment Corp. v. City of Silverton, 175 Or App 556, 559, 30 P3d 420 (2001).
 13

Notwithstanding LUBA’s reference to substantial evidence in the record

that the City made a decision approving a fee waiver, the question of whether or

not the City made a final decision approving the appeal waiver prior to the

deadline is a legal issue, not an evidentiary issue. Thus, the standard of review

under ORS 197.850(9)(C) does not apply.

The issue presented in this appeal, is not whether there is evidence of a

decision on the appeal fee waiver. LUBA ruled that a decision approving a fee

waiver is a land use decision. Therefore, the question of whether the City adopted

a “land use decision” approving the appeal fee waiver is a legal issue governed

by the applicable State statutes and administrative rules. ORS 197.015(10); OAR

660-010-0010(3). This court owes no deference to LUBA’s interpretation of

State statutes and administrative rules. Gilmour v. Linn County, 279 Or App 584,

589-590, 379 P3d 833 (2016).

The central question then is whether LUBA misconstrued the law when it

affirmed the City’s decision when there is no final decision by the Director

approving the fee waiver and the council expressly refused to consider or decide

the fee waiver issue.

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C. Argument.

1. LUBA erred in declaring that city council made a decision

that SBNA perfected its local appeal by simply requesting
that the mandatory appeal fee be waived, and then, in
applying the deferential standard of review under ORS
197.829 to that decision.
a. City council never interpreted its regulations to make
the decision LUBA attributes to it.
The critical issue in this appeal is whether SBNA perfected its local appeal

by satisfying the jurisdictional requirements for filing an appeal before the appeal

deadline. To perfect an appeal of a Type III land use decision to city council, the

city code requires that an appealing party file the appeal before the appeal

deadline and include the mandatory appeal fee. PCC 33.730.030.F and H. The

City has never disputed that failing to pay the appeal fee before the appeal

deadline is a jurisdictional defect.

SBNA understood that jurisdictional requirement and submitted its appeal

form before the deadline. However, SBNA did not include the appeal fee, but

instead relied upon a substitute to that jurisdictional requirement; it submitted a

request for an appeal fee waiver. As part of its Order denying the City’s motion

to dismiss, LUBA concluded that a decision to approve a fee waiver is a land use

decision. (Rec. 182-185). The definition of a final land use decision is governed

by State law and it requires a decision that is reduced to writing and signed by

the decision maker. OAR 661-010-0010(3).

 15

Although LUBA determined the Director did not adopt a final land use

decision approving the fee waiver prior to the appeal deadline, LUBA concluded

that the fee waiver decision was not required to be made before the appeal

deadline. ER 12. The sole document the City claimed was a decision approving

the SBNA fee waiver is an appeal form where an unidentified person at the City

checked a box next to text that stated “Fee Waived” at some unidentified time.

LUBA determined the appeal form was not a final land use decision approving a

fee waiver, but was an interlocutory decision, in large part because it was not

signed by a decision maker. In its Order on the City’s motion to dismiss, LUBA

stated:

ENB 13.25 provides that the decision of the Director of BDS to

waive fees is “final” in that there is no local right to appeal.
However, for purposes of LUBA’s review and jurisdiction, a local
decision “becomes final when it is reduced to writing and bears the
signature of the decision maker(s), unless a local rule or ordinance
specifies that he decision is considered final as provided in the local
rule or ordinance.” OAR 661-010-0010(3)….

As we understand it, the City contends that the staff intake form
marked received on January 12, 2018, is the “final decision” because
it bears the name and handwriting of BDS staff….

While the appeal form indicates that the fee was waived, the appeal
form does not bear [] the necessary signature of the decision maker
[].” OAR 661-010-0010(3). ... We reject the city’s contention that
the “Received By” entry which is printed staff name, is sufficient to
finalize the decision for purposes of LUBA’s review. (Rec. 193).
 16

LUBA never identified any action by the Director that finalized the

interlocutory decision LUBA identified. Instead, LUBA determined council

rendered the fee waiver decision final simply because the council elected to hear

the appeal. (Rec. 189). LUBA’s determination is inconsistent with its express

reasoning in its Order on the motion to dismiss. There LUBA stated that the

decision to approve fee waivers rests with the Director and the Director’s decision

is final.

The principle flaw in LUBA’s decision is that council expressly refused to

consider any aspect of the fee waiver issue because it had delegated all authority

over fee waiver decisions to the Director and therefore the Director’s decision on

this issue was final. Council expressly stated that it had no role in reviewing any

fee waiver issues and refused to consider the issue in this case:

[Petitioner’s] argument regarding validity of an appeal fee waiver is

not properly before council as Council has delegated the authority
to waive appeal fees to the BDS Director. BDS Administrative Rule
ENB [Environmental Built] 13.25 provides that the decision of the
Director of BDS to waive fees is final. ER 5.

In its Final Opinion LUBA recited multiple time in different ways that the

Director’s decision on SBNA’s fee waiver request is final and that council never

reviewed or considered it.

• “[T]he city council did not review whether the appeal fee waiver

was properly allowed.” ER 5.

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• “The fee waiver was ‘final’ for the purposes of city council’s review

in the sense that the city council refused to review BDS staff’s

determination that the neighborhood association had satisfied the

conditions for a fee waiver.” ER 17.

• “However, the city’s code and administrative rule do not appear to

provide any procedure for a party to challenge a BDS decision on a

fee waiver request. Instead the Director’s decision is final.” ER 19.

• “Instead the city council declined to review the fee waiver decision.”

ER 20.

Since LUBA determined the Director did not adopt a final land use

decision approving the fee waiver, and the council concluded that the Director

has the exclusive authority to make that decision and declined to even consider

the fee waiver issue, LUBA should have concluded the City never adopted a final

and reviewable decision on the fee waiver. Instead, LUBA ignored the city

council’s express findings and determined that the city council must have

rendered the fee waiver decision final because it elected to consider the appeal.

LUBA’s reasoning does not hold up against its own determinations and the facts

in the record. LUBA determined that there has to be a final land use decision

approving the waiver and council found that only the Director can make that

decision. LUBA noted multiple times that council did not even consider the
 18

issue. LUBA did not identify any action by the Director that finalized the

interlocutory decision. The only conclusion one can reach is that the City never

made a final decision approving a fee waiver, much less one before the appeal

deadline.

LUBA appears to have taken the odd position that the BDS decision on a

fee waiver can be both non-final and final at the same time. LUBA acknowledged

that state law defines a final land use decision as one reduced to writing and

signed by a decision maker. Clearly, the Director and staff never rendered such

a decision. Yet, LUBA determined without considering the non-final decision,

expressly declining to do so, council rendered some final decision for City

purposes. There are only two options. Either the Director made a final decision

that was reviewable by LUBA, or there is no final decision approving a fee

waiver. LUBA concluded that the only document reflecting a decision was not a

final decision under state law. That should have ended the inquiry and LUBA

should have reversed the City decision on the invalid appeal.

LUBA tried to make this a case about a council interpretation. However,

council’s discussion of jurisdiction proves that it never made a decision nor

adopted any interpretation relevant to this appeal. An interpretation does not

exist in a vacuum. It relates to a decision in which the decision maker interprets

code or regulations to reach a decision. In this case, jurisdiction depends on

 19

whether the City made a final decision approving a fee waiver. Council expressly

determined that the fee waiver issue was not the council’s decision to make. Only

the Director can make a final fee waiver decision. There was nothing for council

to interpret.

Without any discussion on what qualifies as an interpretation entitled to

deference, LUBA concluded that the city council must have interpreted the

relevant code sections on fee waiver and deemed them satisfied in this case:

The city council found that the appeal form indicates that BDS
staff waived the fee. The city council interpreted PCC
33.730.030.H and PCC 33.730.020 as satisfied by the submission
of a completed appeal form and fee waiver request before the
appeal deadline. ER 13.
LUBA added for an appeal to be perfected, at some time, the City had to

make a final decision approving a fee waiver. Not even the City argued appeals

are perfected simply upon a mere request for a fee waiver and that would be an

absurd position in light of the code language. LUBA then reviewed its attributed

interpretation under the deferential standard in ORS 197.829(1) and Siporen v.

City of Medford, 349 Or 247, 243 P3d 776 (2010).

To be sufficient for review, an interpretation must identify in writing the

decision maker’s understanding of the meaning of the local legislations. Green

v. Douglas County, 245 Or App 430, 438, 263 P3d 355 (2011). To get anywhere

close to the interpretation LUBA attributes to it, council would have had to

examine how the rules and regulations it delegated to the Director work with the
 20

mandatory requirements in PCC 33.730.030.F and H. PCC 33.730.030.F

mandates that to perfect an appeal of a Type III decision, a party must file an

appeal before the deadline. PCC 33.730.030.H mandates that any appeal filed

before the deadline must include a required fee. Thus, the appeal fee is a

jurisdictional requirement to perfect an appeal, and must be submitted before the

appeal deadline. The fee waiver is a substitute for that jurisdictional requirement.

The code text does not even mention fee waivers much less answer the question

of how a fee waiver fits into PCC 33.730.030. To even begin any interpretive

process to reach the decision LUBA attributes to council, council would have had

to examine the text in PCC 33.730.030 and the fee waiver rules and regulations.

Council would also have had to evaluate the fee waiver and appeal form

instructions that plainly advise citizens using them that, to perfect an appeal using

a fee waiver, they must have a fee waiver request approved before the deadline.

LUBA did not even attempt to identify where council discussed PCC

33.730.030 or PCC 33.750.020. The only reference to PCC 33.750.020 is to note

that, under that code provision, one needs to examine the rules that the Director

implements to determine how waivers relate to perfecting appeals. There is no

place in its discussion where council even refers to the issue over whether the

mere submission of a fee waiver request perfects an appeal.

 21

More importantly, the council expressly refused the even consider the fee

waiver issue because it delegated the authority to the Director to make that

decision. Council explained: “[Petitioner’s] argument regarding validity of the

appeal fee waiver is not properly before council as council has delegated the

authority to waive appeal fees to the BDS Director….the decision of the Director

of BDS to waive fees is final…BDS’s decision is separate from Council’s

decision on the application….” ER 5.

LUBA failed to explain how a governing body can interpret code

provisions related to an issue it expressly declined to consider. Not only did

council fail to identify the regulations LUBA claimed it interpreted, council did

not even identify a final decision where the Director evaluated those regulations.

Thus, council could not be deemed to have accepted some interpretation by the

Director. All council recited was some form with a box checked indicated some

decision had been made. The council merely assumed the Director made a final

decision on the fee waiver issue – it expressly declined to review that decision or

consider if it was correctly made.

Nor did council make any findings that could embody some implicit

interpretation. An implicit interpretation of a provision that is eligible for

deference under the Siporen standard is one where the practical effect of the

findings is to give definition to the term and the local government’s

 22

understanding of the term is inherent in the way it applied the standard. Green,

245 Or App at 439. Council’s only finding was that there was a form that

indicated that BDS previously made a final decision and that decision was beyond

its review. It is not possible to imply from those findings that council evaluated

PCC 33.730.030.H, PCC 33.750.020 and the administrative rules and then

concluded that an appeal is perfected when an appellant submits an appeal form

and a fee waiver request. If anything, it reflects that council assumed, without

ever reviewing it, that BDS made some decision approving a fee waiver before

the deadline. Importantly, council expressly stated that the Director’s decision

was final and outside of council’s review. It is not possible to conclude that

council even implicitly interpreting code provisions that may have been relevant

to a Director’s decision (which the Director never made in this case) when

council expressly refused to consider any supposed decision or the issues related

to it.

LUBA also failed to reconcile its attributed interpretation with its

conclusion that to perfect an appeal BDS had to have approved the fee waiver at

some point. Apparently, LUBA did not believe that the timing of the actual

approval mattered. ER 12. The problem with LUBA’s position is that it agreed

that the Director did not make any final decision approving the fee waiver making

that statement several times in its opinion. It attributed the final decision to
 23

council, however as Petitioner illustrated above, council expressly declined to

take any action on the request; it could not have finalized an interlocutory, non-

reviewable decision, by declining to even consider it. LUBA appears to have

concluded that despite the lack of any identified final decision that could have

finally perfected an appeal, the fact that council proceeded with the appeal alone

established that the appeal was perfected and council had jurisdiction. That

position cannot be accepted.

If the simple fact that a review body hears an appeal is sufficient to create

jurisdiction, one would have to also accept the notion that a decision to proceed

with an appeal based upon an incorrect conclusion that a jurisdictional

requirement was met cures any jurisdictional defect. That would mean that any

time a decision-making body proceeds to hear an appeal, even if that decision

was based upon an erroneous assumption that all jurisdictional requirements were

met, the decision would be immune from any jurisdictional challenge. Under

that legal theory, there would be little purpose in even having jurisdictional

requirements. In addition, if by deciding to review a matter the review body cures

any jurisdictional defects, how could any party aggrieved by an incorrect decision

to approve a fee waiver appeal that separate land use decision. Under LUBA’s

decision, the fee waiver approval must be appealed to LUBA once it is final, but

if by going forward with the appeal the local government cures all jurisdictional
 24

defects, any LUBA appeal of the fee waiver would be moot.

b. Because council never made any reviewable

interpretation, LUBA’s interpretation is the only one
the Court has to review and the Court should review
that for legal error.

Because council expressly declined to make a decision and rendered no

interpretation, the Court may proceed under PCC 197.829(2) and interpret the

City’s rules and regulation ab initio as part of reviewing LUBA’s interpretation.

Green v. Douglas County, 245 Or App 430, 441, 263 P3d 355(2011), citing,

Alliance for Responsible Land Use v. Deschutes County, 149 Or App 259, 264-

265, 942 P2d 836 (1997).

According to LUBA, a party using a substitute for the required fee perfects

their appeal simply by asking for the appeal fee to be waived any time before the

appeal deadline provided at some point in time the Director approves their

request. Under LUBA’s attributed decision, the Director could approve that

waiver at any time even weeks, months or years after the appeal deadline. Of

course, LUBA’s attributed decision also makes it possible that the City could

proceed to hear an appeal and later deny a fee waiver request, making any

decision void. That position must be rejected.

Applying the rules for construing statutes the Court begins with the text of

the disputed provision in context of the entire code section. The Court can also

consider any relevant legislative history. State v. Gaines, 346 Or 160, 206 P3d
 25

1042 (2008). PCC 33.730.030.H does not contain any text that states an appellant

can perfect an appeal by submitting the appeal form with a mere request for a fee

waiver. Pursuant to PCC 33.730.030.F, an appellant must submit a local appeal

of a Type III decision within 14 days of the date the notice of decision was mailed.

The City defines the term “must” the same as the terms “shall” and “will,” as

mandatory. PCC 33.700.070.D. The City makes it clear submitting a local

appeal within 14 days is jurisdictional. Golden v. City of Silverton, 58 Or LUBA

399, 405-406, aff’d, 228 Or App 757, 210 P3d 946, rev den, 347 Or 42 (2009).

In Golden, LUBA observed that while not all appeal requirements in local codes

are jurisdictional, they can be if the local jurisdiction makes it clear that the

requirement is jurisdictional or mandatory. PCC 33.730.030.H mandates a

perfected appeal must include the required form and fee. Moreover, the BDS

appeal form instructions unequivocally advise appellants that paying the fee is

required for a valid appeal. The plain text and relevant context supports only one

reasonable conclusion; to perfect an appeal to council, a party must appeal before

the deadline, submit the proper appeal form and the required fee. Neither the

City nor LUBA disagreed with that position.

To interpret PCC 33.730.030.H to include LUBA’s allowance, the Court

would have to add text inconsistent with the direction in ORS 174.010. If the

drafters intended to treat a substitute for the required fee differently, the text
 26

would state that.

The City and LUBA relied upon the fact that previously PCC 33.750

contained the fee waiver requirements and stated that the waiver request had to

be approved prior to submitting the appeal form and that text is not in the code

now.2 ER 11. They assert that the City’s decision to remove the requirements

from the code demonstrates an intent to eliminate the requirement that a party

obtain the waiver before the deadline. They also rely on text in an administrative

rule that simply states that an appeal fee waiver request and an appeal form may

be submitted at the same time. ER 12. In the proper context, the mere absence

of text stating that the request must be approved prior to submitting the appeal

form does not lead to the conclusion that an appeal is perfected if a party merely

requests a fee waiver before the deadline.

LUBA ignored all of the relevant context. First, as discussed above, PCC

33.730.030.F and H together clearly provide that, for an appeal to be valid, an

appellant must submit the appeal form and the required fee before the appeal

deadline. If the appeal fee is jurisdictional and must be submitted before the

2
The text in 33.750 LUBA relied upon was recited in its decision in Ramsey v.
City of Portland 29 Or LUBA 139, (LUBA No. 94-167, March 30, 1995). The
text related to waivers of both land use application fees and appeal fees. The text
LUBA referred to in Ramsey was related to the waiver of application fees. “The
waiver approval must occur prior to submitting the application. Ramsey, 29 Or
LUBA at 4.
 27

appeal deadline, the substitute for that required fee has to be submitted before the

appeal deadline without express text stating so. There was no need for the

drafters to add back into the code the requirement that the fee waiver be approved

before the deadline when it removed the fee waiver submission requirements

from PCC 33.750.

Second, the text in an administrative rule allowing a person to submit the

request at the same time as the appeal form likewise is not a clear statement that

the request is all that is needed to perfect an appeal. City council confirmed that

it has delegated to the Director the authority to consider and approve appeal fee

waiver requests. The Director administers the fee waiver program. The Director

approves the appeal form and appeal waiver forms, along with the important

instructions that provide the best context for the meaning of PCC 33.730.030.H.

The Director informs citizens of requirements under PCC 33.730.030 to perfect

an appeal. The appeal form and waiver form instructions published in 2016, after

the fee waiver requirements were removed from the code, both plainly state:

In order for an appeal to be valid, it must be submitted prior to the

appeal deadline… and must be accompanied by the required appeal
fee or an approved fee waiver.”3 (ER 30; Rec. 162; LUBA Rec.
3780).

The fee waiver form instructions warn:

3
The appeal fee waiver form instructions continue with the following text “as
stated in the specific land use decision (Section 33.730.020).”
 28

“[w]e will allow the waiver and appeal to be submitted at the same
time. However, if the request for a fee waiver is denied, the appeal
may be invalid because the deadline passed and the fee did not
accompany the appeal.” (Rec. 120).

In April 2018, presumably in response to the events described in this brief,

the City again revised its appeal fee waiver form to make it clear that a decision

on a fee waiver request is to be made by the Director in a “Director letter”, as was

the rule in the prior fee waiver cases identified on page 32, fn, 4. ER 45. The

revised form instructions remained the same. They plainly advised that to be

valid, an appeal had to be submitted before the appeal deadline and had to have

either the required fee or a fee waiver approved before the deadline. ER 46.

The instructions are consistent with the administrative rule. The

instructions explain that although a party may submit the request with the appeal

form, the appeal is not perfected unless the request is approved before the

deadline and cautions parties not to wait until the last day to submit the form and

the request. That text cannot be construed to mean that submitting the request

for the fee substitute is enough to perfect an appeal.

The text in the administrative rule is consistent with Petitioner’s reading

of PCC 33.730.030.F and H. It allows a party to submit a fee waiver request with

an appeal form. However, the appeal is not perfected unless, before the appeal

deadline, that party pays the fee or provides the substitute for the fee, which is an

approved waiver. Examining the relevant text in PCC 33.730.030.H, the BDS
 29

administrative rule and the overall context behind them, there is only one legally

correct conclusion: payment of an appeal fee before the appeal deadline is a

jurisdictional requirement and thus, to perfect an appeal using a substitute fee

waiver a party must obtain a valid decision waiving the fee before the appeal

deadline.

2. Even under LUBA’s attributed decision, there is no dispute

that, for SBNA’s appeal to have been valid, the City had to
have made a final, effective decision approving its waiver
request.
LUBA concluded council must have decided that an appeal is perfected if

the appellant timely submits an appeal form and a request for a fee waiver.

LUBA expressed that in its view, it does not matter whether the decision to

approve the waiver came after the appeal deadline. Even under LUBA’s

reasoning, there must be some formal, reviewable decision approving the fee

waiver request. Neither LUBA nor the City asserted that a fee waiver request

that was never approved can perfect an appeal. Thus, to determine whether

SBNA ever received an effective decision approving the required fee waiver, one

needs to identify a decision that is final under the law.

The main problem for the City in this appeal, and one LUBA appears to

have overlooked is the fact the City has never produced any final, effective

decision on the fee waiver that can be reviewed to determine whether a waiver

was properly granted (assuming only for argument’s sake, that a waiver was
 30

approved). LUBA attempted to get around this critical point by substituting

evidence that a decision was made for an actual reviewable decision. The critical

issues in this appeal cannot be decided based upon LUBA’s view that there is

evidence in the record that a decision was made at some point in time.

LUBA has held consistently, in prior cases, and ruled in this case, that a

decision to approve or deny a request for a fee waiver is a land use decision. The

City has argued to LUBA:

The city argues that a local governing body’s decision must be

included in a written order which contains findings explaining the
governing body’s action. The city states that council’s action
includes no document entitled order or findings and is therefore
insufficient to constitute a land use decision. (Emphasis added.)
Urban Resources, Inc. v. City of Portland, 5 Or LUBA 299, (LUBA No. 81-136,

April 26, 1982)(slip op at 4). (Emphasis added). (Internal citation omitted). In

Urban Resources, LUBA determined that it had jurisdiction to review the

challenged decision, but found it defective because it did not include any

findings.

Written findings are an absolute requirement for a final, effective decision.

South of Sunnyside Neighborhood Association League v. Board of

Commissioners of Clackamas County, 280 Or 3, 569 P2d 1063 (1977); 1000

Friends of Oregon v. Metro, 174 Or App 406, 411, 26 P3d 151 (2001). In 1000

Friends, the Court quoted from South of Sunnyside as follows:

 31

We wish to make it clear that by insisting on adequate findings of

fact we are not simply imposing legalistic notions of proper form, or
setting an empty exercise for local governments to follow. No
particular form is required, and no magic words need be employed.
What is needed for adequate judicial review is a clear statement of
what, specifically, the decision making body believes, after hearing
and considering all of the evidence, to be the relevant and important
facts upon which its decision is based.

1000 Friends of Oregon v. Metro, 174 Or App at 411.

LUBA begins its discussion of what it refers to as “the BDS Decision” on

page 14 of its Order. ER 14. LUBA vacillates on exactly what it views as the

final BDS decision on the SBNA request. LUBA begins by stating that the appeal

form evidenced a staff decision, and that reasonable people could rely on it to

conclude that BDS staff waived the fee, but, at least initially, stopped short of

declaring that form the final decision. Then, when attempting to avoid

Petitioner’s argument that the appeal form cannot be deemed the final BDS

decision because it was never signed by a decision maker, LUBA appears to treat

the appeal form as the final BDS decision. Adding confusion, LUBA failed to

discuss the separate fee waiver form. If the appeal form is just evidence that BDS

staff made a decision to approve the fee waiver request, it seems logical that the

next step would be to examine the actual fee waiver form that has a location for

BDS to indicate whether the request itself was approved. LUBA never mentions

the fee waiver form that clearly indicates BDS took no action on the waiver

request other than to receive it. There is no indication the Director or BDS made
 32

a decision and no indication the City ever sent anyone notice of any decision on

the waiver request. 4 ER 31.

To add even more confusion, LUBA characterizes the appeal form as both

a non-reviewable interlocutory decision and then a final decision for purposes of

approving the request. LUBA wrote: “We characterized the fee waiver decision

as in interlocutory decision in the local appeal that became final for purposes of

LUBA’s review only when the city council issued its final decision on the merits

of the application and appeal.” ER 16. “We did not conclude that the fee waiver

decision was an independently appealable final land use decision. See

Vanspeybroek v. Tillamook County, 51 Or LUBA 546, 552 (2006). ER 16.

LUBA’s reasoning makes no sense. If the appeal form is the BDS decision

and it was not a final decision, LUBA fails to explain how that non-final decision

became final and reviewable based upon council’s express decision not to

consider it. In Vanspeybroek, LUBA discussed some of its prior decisions in

which it explained what constitutes an interlocutory decision that cannot be

4
The City intimates that it processed SBNA’s request just as it processes all fee
waiver requests. That is not accurate. There are three reported cases where the
Director, in response to fee waiver requests, issued a written decision clearly
articulating the decision and the basis for the decision. Ramsey v. City of
Portland, 29 Or LUBA 139 (1994); St. John’s Neighborhood Association v. City
of Portland, 38 Or LUBA 275 (2000); and Babbitt v. City of Portland, 41 Or
LUBA 151 (2001). The code revision LUBA mentioned would have had no
impact on the need to issue a written decision, signed by the Director articulating
reasons for the decision.
 33

appealed to LUBA. The common thread is that an interlocutory decision in a

land use process is one that involves an issue that will be further reviewed at a

later stage of the proceedings.

LUBA never reconciled its conclusion that the appeal form was an

interlocutory decision that became final at council, in light of council’s express

statement that any fee waiver decision had to be made by the Director (or a

delegate)5 and was “separate from council’s decision on the application that is

the subject of these findings.” Council’s express statements foreclosed any

chance that the “decision” to which LUBA referred as interlocutory was finalized

as part of the council appeal.

LUBA attempted to get past that critical void by making the issue a

substantial evidence question. It stated that, in its view, the appeal form with a

box checked by the text “Fee Waived” was substantial evidence that there was a

decision approving a fee waiver request. ER 14. LUBA missed the critical legal

requirement. At a minimum LUBA must identify the final decision. Whether a

document qualifies as a final land use decision is a legal question not evidentiary.

5
LUBA did not have any concern over the fact that the only document which in
anyway relates to the fee waiver decision is an intake form where a technician
acknowledged receipt, accepting the City’s claim that there was apparently some
standing unstated delegation of the Director’s responsibility to any staff person
who may be at the counter when a form comes in. LUBA ignored that when the
Director delegates decision making, the Director expressly recites that delegation
in the decision. (ER 44; Rec 271.)
 34

ORS 197.015(10) and OAR 660-010-0010(3) and (4). A statement that there is

substantial evidence of a decision cannot substitute as a final effective land use

decision.

No local government could offer a functional land use review process

under the standard LUBA is trying to create. Requiring a final, written decision

signed by a decision maker, as LUBA does, is legally required and essential for

any review procedure. ORS 197.825(1). The requirement that land use decisions

must be in writing and include findings is a cornerstone of the land use system.

It assures that all participants will know what criteria the decision maker used,

what evidence the decision maker relied upon and how the decision maker

applied the criteria to get to the decision. LUBA failed to address how, under its

standard, where all the City needs is some evidence that it made a decision, any

party could meaningfully participate in a land use proceeding. One can imagine

situations where a participant may conclude, based on the events that transpired,

that there was no decision. Later, after they conclude that the case preceded to a

point where there was a decision and they appeal, the local jurisdiction could

claim the appeal was late because the decision was made much earlier and cite to

some “evidence that a decision was made”.

This case illustrates Petitioner’s example of what could happen is not

farfetched. After Petitioner submitted opposing material the City did not issue
 35

any written decision. The Director never advised Petitioner whether BDS

evaluated that material. The Director never provided any decision to anyone.

Petitioner followed up the next week looking for a decision. Petitioner made

express requests to the Director to provide a copy of any decision BDS made.

ER 39. Not only did the Director fail to provide a decision, she indicated to her

staff that they should look into Petitioner’s request because she was not aware of

the status. ER 39.

The first “indication” that the City claimed that there was a decision was

in council’s February 14, 2018 Findings where council referred to the appeal

form and the checked box. Petitioner filed a precautionary appeal to LUBA

within 21 days of February 14, 2018. The City moved to dismiss that appeal

arguing, with no factual support, that the form was the decision and it was made

on January 12th, so Petitioner’s appeal was untimely. LUBA’s new standard

would facilitate local governments playing hide the ball to circumvent appeal

rights.

LUBA was correct when it concluded that an intake appeal form is not a

final, effective decision by the Director approving a fee waiver. Council assumed

that there was some decision. However, the key is the City has not produced, and

cannot produce, an actual decision that meets the statutory definition. Because

the City never made an effective decision waiving the appeal fee, even under
 36

LUBA’s incorrect interpretation of PCC 33.730.030 that would allow the

Director to approve a waiver after the appeal deadline, the SBNA never perfected

its appeal. Its appeal was not valid and council did not have jurisdiction over the

appeal. The City’s decision granting the appeal must be reversed.

Moreover, there is no basis for the Court to remand this case to the City.

The City cannot fix a jurisdictional defect more than one year after the

jurisdictional deadline. If the Court allows the City to engage in that type of

action, there will be no meaning to jurisdictional requirements for filing a local

appeal. It would open the door to council allowing appeals long after appeal

deadlines have passed. What criteria would exists in those cases? Council could

arbitrarily base its decision on how the council member personally feel about the

parties or a particular project. It would create an environment where council

could treat appellants differently for purely arbitrary reasons.

III. PETITIONER’S SECOND ASSIGNMENT OF ERROR

A. Preservation of Error.

Petitioner preserved its argument below arguing to LUBA that because the

City never made any final, effective decision approving the SBNA’s appeal fee

waiver request, and because the SBNA did not pay the required appeal fee,

council lacked jurisdiction to hear the SBNA’s appeal. (Rec. 125-139).

 37

B. Standard of Review.

This Court reviews LUBA’s Order to determine whether it correctly

applied substantive or procedural law. ORS 197.850(9); Columbia Riverkeeper

v. Clatsop County, supra, 238 Or App at 459, n.4. This Court shall reverse or

remand LUBA’s Order if it is unlawful in substance. ORS 197.850(9)(a). The

unlawful in substance review standard under ORS 197.850(9)(a) includes “a

mistaken interpretation of the applicable law.” Zimmerman v. LCDC, supra, 274

Or App at 519; Mountain West Investment Corp. v. City of Silverton, supra, 175

Or App at 559.

The above standard of review applies to LUBA’s decision to deny

Petitioner’s Second and Third Assignments of Error. In rejecting Petitioner’s

First Assignment of Error, LUBA adopted the position that the appeal form, to

the extent it was a BDS decision, was not a final, reviewable decision, but rather

an interlocutory decision. It based that view, in part, on the fact that the form

was not signed by a decision maker. It is undisputed that council did not take

any action that could have finalized what LUBA said was an interlocutory

decision not subject to its review. LUBA acknowledged that council declined to

consider the BDS interlocutory decision. Yet, in rejecting Petitioner’s Second

and Third Assignment of Error, LUBA ostensibly reviewed the decision it found

to be non-eligible for LUBA’s review. In doing that LUBA misconstrued the

 38

law. LUBA can only review final land use decisions. ORS 197.825(1); OAR

661-010-0010(3).

Even if there was a final reviewable decision on the SBNA fee waiver

request, ignoring that the appeal form was never signed, and there was something

for LUBA to review, LUBA did not apply the correct standard of review. LUBA

was required to examine the decision to determine whether it had adequate

findings supported by substantial evidence in the record. ORS 197.835(9)(C) and

(D). In addition, a local government’s decision must have adequate findings.

OAR 661-010-0071(2)(a); Dickas v. City of Beaverton, 17 Or LUBA 578 (1989).

Findings are adequate only if they identify the relevant standards, set out the facts

relied upon, and explain how the facts lead to the conclusions that the result

satisfies the approval standard. Le Roux v. Malheur County, 30 Or LUBA 268,

271 (1995). The unsigned appeal form did not include a single finding.

C. Argument.

1. To the extent the appeal form is a decision, LUBA erred in

reviewing that decision because LUBA found it to be a non-
reviewable decision.
Petitioner’s Second Assignment of Error relates to its precautionary appeal

in LUBA No. 2018-17 and is conditional. As the issues relate to LUBA No.

2018-16, Petitioner argued in its First Assignment of Error to LUBA that the City

erred in hearing the SBNA’s appeal because the appeal was not perfected and

was thus, invalid. City council did not have jurisdiction. As it relates to LUBA
 39

No. 2018-017, Petitioner argued in its Second Assignment of Error to LUBA that

if the City made a decision approving the SBNA’s fee waiver request, the City

erred because there were no findings supported by substantial evidence in the

record that the SBNA satisfied the requirements to obtain a fee waiver. If the

Court accepts Petitioner’s First Assignment of Error, it must reverse the City’s

decision because the appeal was never valid.

LUBA purports to have reviewed the decision to approve SBNA’s request

for legal errors. ER 20. It then examined the requirements the City has for

approving fee waiver requests and concluded that the City’s decision was correct.

LUBA’s first error was in even reviewing a decision that it concluded was beyond

its review. As Petitioner explained in its First Assignment of Error, LUBA has

the authority to review “final land use decisions.” LUBA defines a final land use

decision subject to its review as a decision reduced to writing and signed by the

decision maker. OAR 661-010-0010(3). It never identified any other document

that could be the decision. It agreed that council never considered the fee waiver

decision so there is no room to argue that the council decision granting the appeal

is the final decision on the fee waiver. LUBA determined the appeal form to not

be a final decision. LUBA erred in reviewing a decision it agreed was never

final.
 40

Even if one assumes that the appeal form can be final and subject to

LUBA’s review despite it not meeting the clear definition of a final reviewable

decision, LUBA clearly erred in upholding that decision. The issue Petitioner

raised in its Second Assignment of Error is whether a decision approving a fee

waiver was supported by adequate findings based upon substantial evidence in

the record. LUBA should have applied that standard, and reviewed what it

understood to be the BDS staff decision to determine whether it had adequate

findings. ORS 197.835(9)(C). LUBA brushed this important issue aside and

never even considered whether there were any findings to support a decision on

a fee waiver request. LUBA does not have the authority to make a decision to

approve a fee waiver request in the first instance, but that is exactly what LUBA

purported to do.

LUBA substituted itself into the place of BDS and then, decided based

upon assumptions rather than facts, that BDS was correct. LUBA recited with no

support that “we do not understand petitioner to dispute that the neighborhood

association had standing or that the appeal was submitted on behalf of the

neighborhood association.” ER 22. Rather than examine the record to see if there

was a decision that included a finding that the SBNA had standing, LUBA simply

recited that it did not appear that anyone challenged that point. LUBA ignored

the fact that, unless and until BDS produces findings, it is not possible for
 41

opposing parties to determine conclusively whether there is a challenge to the

findings.

More importantly, LUBA’s statement that Petitioner did not challenge

whether the appeal was submitted on behalf of the association is inaccurate.

Petitioner expressly argued in its Petition for Review that the SBNA’s appeal was

not an appeal by the SBNA. (Rec. 150). Petitioner demonstrated that the vote to

submit the appeal was not conducted in accordance with the SBNA’s bylaws.

The City never disputed that fact. Petitioner argued that because the vote was

not conducted in accordance with the bylaws, the vote was not a vote by the

SBNA to submit an appeal. It was an appeal authorized by individuals and

submitted by one person who did not include the required fee. There was no

dispute that the person who submitted the appeal did not request a fee waiver that

is allowed for individuals. The only such fee waiver is a low income waiver and

Mr. Lennox never requested such a waiver.

The improper vote also impacted another requirement. Another

requirement to obtain a fee waiver is that the president of the recognized

organization must certify that the vote was conducted consistent with the

organization’s bylaws. The president is to either attach a copy of the minutes or

recite the vote results. (Rec. 161). The SBNA’s president did both. The material

Mr. Griffith submitted on January 12, 2018, revealed that those individuals who
 42

conducted the vote to appeal did not provide the required notice and did not

declare any emergency to shorten the notice period. The vote was not conducted

in the manner required by the bylaws.

LUBA erroneously concluded that, even in the face of that evidence, the

City was entitled to rely exclusively on the false representation of the president.

This is not a situation where BDS relied upon a representation to make a decision

and then later learned that the representation may not have been accurate. Here,

the City had undisputed evidence before it that proved the representation false.

Not only did BDS have the actual minutes from Mr. Lennox but, at 4:13 p.m. on

January 12, 2018, Petitioner submitted direct proof that the SBNA’s vote was not

conducted in accordance with its bylaws and that the minutes proved that point.

ER 32-37. There had been no action on the SBNA’s request. (ER 42; Rec. 241).

In making a land use decision, a local decision maker can accept some

evidence and reject other evidence. However, a decision maker must consider

the record as a whole and all of the evidence from the parties. Younger v. City of

Portland, 305 Or 346, 752 P2d 262 (2008). It does not have the right to simply

refuse to consider evidence because it wants one particular result over another.

Even if BDS has the legal ability to accept the confirmed inaccurate

representation of the SBNA president, it was required to consider Petitioner’s

evidence and explain why it was rejecting that evidence in making its decision.
 43

Under this Assignment of Error, the Court should reverse LUBA rather

than remand the decision. If the Court sustains Petitioner’s arguments, all LUBA

could do is, in turn, remand to the City. For the reasons stated above in

Petitioner’s First Assignment of Error, a remand is not appropriate because the

City cannot, after more than a year, make a decision to approve a fee waiver and

permit an appeal for which the deadline has passed.

IV. CONCLUSION

For the foregoing reasons, Petitioner respectfully requests this Court to

reverse LUBA’s Order.

DATED this 12th day of February, 2019.

HATHAWAY LARSON LLP

By s/ Christopher P. Koback
Christopher P. Koback, OSB # 913408
Of Attorneys for Petitioner Riverview
EXCERPT OF RECORD
 EXCERPT OF RECORD

1. LUBA Final Order and Opinion dated January 4, 2019 ...................... ER-1-28

2. Type III Decision Appeal Form

(LUBA Rec. 159-160) ................................................................ ER-29-30

3. Type III Decision Appeal Fee Waiver Form (LUBA Rec. 161).......... ER-31-32

4. Robert Griffith Letter dated January 12, 2018 (LUBA Rec. 165-170) ER-33-37

5. Fee Waiver Instructions (Rec. 3780).................................................... ER-38

6. Rebecca Esau Email dated January 19, 2018 (LUBA Rec. 236) ......... ER-39

7. Affidavit of Stephen Griffith (LUBA Rec. 239-242)........................... ER 40-43

8. Decision Notice LU-17-105503 AP (LUBA Rec. 271) ....................... ER-44

9. Fee Waiver Request Form 4/27/18 (LUBA Rec. 291-292) ................. ER-45-46
 ER-1

1 BEFORB THE LAND USE BOARD OF APPBALS

2
3 OF nm STATE OF OREGON
4
s RIVBR.VIBW ABBBY
6 MAUSOLEUM COMPANY,
7 Pditioner,
8
9 vs.
10 Oll()V].9 Pn12•40 LU9'
11 CITY OF POR1LAND,
12 Iwpondent.
13
14 and
1S
16 SOUIHBURLINGAMB
17 NEIGHBORHOOD ASSOCIATION,
18 1*"'111Dt'-lwpontWIII.
19
20 LUBA Nos. 2018-016 and 2018-017
21
22 FINAL OPINION
23 ANDORDBR
24
2S .Appeal from City of Portlancl.
26
27 Cbriatopher P. Koback, Portland, filed tbe petition for review and argued
28 on behalf ofpetitioner. With him on the brief wu Hathaway Lanon ll.P.
29
30 Lamm A. King, Deputy City Attorney, Portland, filed a joint ffi1PODSe
31 brief and aqued on behalfof reapcmdent.
32
33 Cmie A. Richter, Portland, flied a joint brief and argued on behalf of
34 intervmor-n,spondent. With her cm the brief wu Bateman Seidel, P.C.
3S
36 ZAMUDIO, Board Member; R.YAN, Board Chair; BASSHAM. Board
37 Member. participated in the decision.
38

Papl
 ER-2

1 LUBA No. 2018-016 AFF'IRMBD 01/04/2019

2 LUBA No. 2018-017 AFFIRMBD 01/04/2019
3
4 You are em:itled to judicial review of this Order. Judicial review is
S govemecl by the provisions of ORS 197.BSO.

Page2
 ER-3

1 Opinion by Zamudio.
2 NATURE OF THE DECISION
3 Petitioner appeals (1) a city ataf? decision granting a local appeal fee
4 waiver to a neighbomood uaociaticm, and (2) a city council decision on local
5 appeal dcmying petitioner's application to subdivide property.
6 REPLYBRIEP
7 Petitioner filed a reply brief in response to the joint response brief of the
8 city and intervenor-respondent (together, responchmta). There is no opposition to
9 the brief and it is allowed.

10 FACTS
11 1he subjectproper.ty is comprised ofapproximately 14.17 acres ofvacant
12 land that is zoned Single Dwelling hsidmtial 10,000 (R.10) with environmental
13 protection and env.ironmental conservation overlays. Petitioner filed en
14 application to subdivide the property into 21 lota for single-dwelling residences
1S and requested an environmental review and modifications to satisfy requirements
16 in the amrcmmental overlay zones. Petitioner requested mviromnmtal violation
17 review to comet violations related to vegetation modification and ground
18 disturbance. Petitioner's application was processed ma Type m procedure with
19 a public hearing before the city hearings officer. 1he hearings officer appmved
20 with conditions the subdivision, environmental review, envircmnumta.1

21 modifications, and enviromncmtal violation review. Record 3863.

Page 3
 ER-4

1 1he deadJine for filing a local appeal ofthe hearings oflicer'a deciaion was
2 JIDUIIY 12, 2018, at 4:30 p.m. 1 On January 12, 20181 at 2:59 p.m.1 the president
3 of intmvenor-reapcmdent, the South Burlingame Neighborhood Asaociatim (the
4 neighborhood allOCiation), filed two fbrms provided by the city's Director of
s Bureau of Deve1opmmrt Services (BDS): (1) a Type mDecision Appeal "Form
6 (appeal farm) mid (2) a Type m Decision Appeal Fee Waiver 1uqueat for
7 Orpnimtiom (fee waiver farm). Both form• are marked •-a.eceived By'1 a DDS
8 staff pman. lucorcl 37371 3741. The appeal fimn ccmhriN I preprinted line tbat
9 provides "[Y] [N] Fee Waived." The "[Y]" is rnarbcl on the appeal form. Recmd
10 3737. 1he fee waiver fmm contirina a preprinted line that provides two check
11 boxes "[ ] Waiver Approved [ ] Waiver Denied." Neither box ia checbd on the
12 fee waiver form. Record 3741.
13 On January 12, 2018, after 1he nmghborhood aasociati.an submitted its
14 appeal and fee waiver requeat, Robert Griffith {Griffith), 111 owm,r of petitioner
15 Riverview Abbey Mausoleum Company and a member of the neigbbmhoocl
16 aaaociation. submitted writtlJll argument that the local appeal WU invalid and
17 should not be heard by the city .council. According to Grifiith. the neighborhood
18 l880Ciation's vote to file the local appeal was not made in accordance with the
19 neighborhood uaociatian'• bylaws governing mmqenoy meetlnp. u explained

in a prior order denying 1he city's

1 We previously set out 1he fb11owing facts
motion to ctisrni88. Rtwrvlew AblH,y Mauaolnm Co,npa,o, v. Ctty ofPortland.
_ Or LUBA_ (LUBA Noa 2018-016/017, Order, Oct 12, 2018).

Page4
 ER-5

1 in greater detail in our discussion under the second and third assignments oferror.
2 Record3746-50. On January 17, 2018, BDS issued a notice ofpublic hearing for
3 February 7, 2018. Record 388S. On February S, 2018, petitioner's attorney
4 submitted a letter to the city council asserting that the appeal was invalid for the
S 1ame l'OIIOll8 argued in Griffith's Jamwy 12, 2018, lcttar. R.aacrd 3981-85.
6 In itB final decision, the city council decided that DDS had waived the
7 appeal fee and that the local appeal was valid. However, the city council did not
8 review whether the appeal fee waiver wu properly allowed. 'Ibe city council
9 expJained:
10 "[Petitioner] submitted testimony to Council (letter from
11 [petitioner's comiael] dated February 5, 2018) quesdcming the
12 Council's jurisdiction to hear this appeal. Specifically, [petitioner]
13 believes [the rurigbborhood association] was improperly granted an
14 appeal fee waiver. He argues that thek appeal, which was submitted
1S before the appeal period mdecl but without an appeal fee, wu
16 invalid. PCC 33.750.020 provides that the Director of DDS
17 detmnines the rules and procedures for waiver offees. The Type m
18 Decision Appeal Form, in the record, indicates that BDS staff
19 waived the fee. [Petitioner's] argument regarding validity of an
20 appeal fee waiver is not properly before ColmCil u Council has
21 delegated authority to waiw appeal fees to the BDS Director. BDS
22 Adminjstrative Rllle BNB [Bnvjromnent (Built)] 13.25 provides that
23 the decision of the Director ofBDS to waive fees ii final. BDS'a
24 decision is separate from Council's decision on the application that
2S is the subject ofd:i.eae findings." hcord 17,.
26 On the merits ofthe appeal, 1he city council denied petitioner's application
27 for subdivision, environmental review, and modifications and approved with

28 conditions the environmental violation review. Record 63-64. Petitionm: filed

PageS
 ER-6

1 two 1eparate appeals to LUBA challenging the BDS fee waiver decision {LUBA

2 No. 2018-017) and the city council's final decision (LUBA No. 2018-016).
3 LUBA CODIOlidated thoae appeals.
4 Petitioner does not obaJ1enge the su.batance of the city council's dem.sion
5 on petitioner's subdivision application. Petitioner's argummta focus aololy on the
6 fee waiver decision in relation to 1he validity of1he appeal proceedmg before the
7 city council. Petitioner'• three aaajgnrnaa of error pn,aent intmre1ated 1ep1.
8 argumenta. Pet.itioner argues 1hat the city mmr actually made an efi"ectivo
9 deciRion to waive tho appeal fee, and that the BDS ataft" deciaion upon which the
10 city council relied was not an effective. final decuiaD on the neighborhood
11 uaooiati.on's fee waiver request. A.ccordmgly, petitioner argues that 1he
12 neighbmbood usocfatian'a appeal was invalid, and the city council's deoiaion
13 must be revened. For the .rwons oxpJained below, we nject petitioner's
14 argumenta and affinn the city council's de1mmination 1bat BDS made an

15 effective decision approving 1he foe waiver and. thus, the local appeal is valid.
16 FIRST ASSIGNMENT OF ERROR
17 Undar the first ueignment of error, petitioner makes three primary
18 arguments: (1) the city council lacbcl jurisdiction because, according to
19 petitioner, an appeal fee must be pa.id or waived before the appeal deadJino; (2)
20 fee waivers must be decided by the Director of BDS (Dil'ector) (and not BDS
21 staff); and (3) an effective fee waiver requires a mgned, written decision and
22 notice of decision.

Page6
 ER-7

1 A. Waiver
2 Respondents initially respond that petitioner's arguments were not
3 presented to the city council and, thus, are waived. See ORS 197.835(3) (LUBA's
4 review is limited to issues raised by a participant before the local hearings body).
5 Petitioner replies, and we agree, that preservation and waiver principles are
6 inapposite here. A petitioner is not required to anticipate erroneous findings or
7 interpn,tations in a final decisim1 in order to challenge them at LUBA. S., e.g.,
B Ft1manda v. City ofPortland, 73 Or LUBA 107, q//'d, 278 Or App 873, 380 P3d
9 1207 (2016) (a petitioner is not iequired to anticipate that a city will adopt
10 allegedly erroneous interpretations and object to those interpietati.ons to preserve
11 a right to usign error at LUBA). Petitioner raised the fee waiver issue to the city
12 council and argued that the local appeal was invalid Petitioner could not have
13 known that the city cmincil would rely on the BDS appeal form as the operative
14 fee waiver decision, with attendant findings and intmptetations, until the city
1S iMUed it.s final decision. Accordingly, petitioner did not have the opportunit1 to
16 raise the specific challenges to the BDS fee waiver decision during the local
17 proceedjng and may raise them for 1he first time in this appeal.
18 B. The eity council decll.lon
19 Petitioner argues that the city council med in hearing the local appeal
20 because the appeal was not perfected. We start by explaining the applicable law.
21 Portland City Code (PCC) 33.730.030(H)(l) governs type m procedures and
22 provides that an appeal is filed when completed BDS forms are submitted with

Page7
 ER-8

1 the required fee.2 However, the appeal fee may be waived. The Director
2 e&1ablisbes the mles and procedurea for land use review and appeal fee payment,
3 rofimd. and waiver. PCC 33~750.020.3 'Ihe·Director, or her delegate, accepts.
4 reviews, and decides fee waiver requests purmant to BDS Administrative Rule

S (Bnviromnent (Built)) (BNB) 13.25.4 S.. PCC 33.710.090 (providing that 1he

2 PCC 33.730.030(H)(l) provldea:

"B. When an appeal ii filed. Appeala must comply with this

aubaection.
"l. COJliellt ofthe appeal. The appeal must be submitted on forms
provided by the Director of BDS. All mformation nqueated
on the farm must be submitted in order for the appeal bm to
be accepted. The appeal teqUeat must include:
"• 1be file number and land use review(a) appealed;
"• The appellant's na:rno, address, signature, phone
number, ml ndati.cmabip to 1he land use action;
••. A statement of. which seeti.ons of the Zoning Code or
which appmval criteria the decision violates; 1111d
•. '!be required fee." (Boldmce in original.)
3 PCC 33.750.020 provides:

"Raquired fees for land ue reviews and appeals of land use

decisions are stated in the F.ee Schedule for Title 33, available at the
Developrrumt Services Center. Rules and Procedures for the
payment of fees. refim.ds, and waiver of fees are cletermhud by the
Director ofBDS."
4 END 13.25 provides, in relevant part

Page8
 ER-9

"IV. Fee Waiven or Refunds

11
1he Director ofBDS will consider fee waivers or refunds on a case
by caso basis. The decision of the Director to waive or refimd fees
is final•
..A. Fee Waiven

"The Director may waive BDS laud use review application or appeal
feos IS specified below for recognimd cqanj7-1,tions, lowaincome
applicants, City govemmcmt or nonprofit organimti.ons. (A
'recognized orgm:dmion' is defined in PCC 33.910.) An application
for a fee waiver may be filed concunmtly with the land use review
application or appeal form.
--1. Reeoplzed orpnimtlon appeal fee waivers.
11
a. Type D and Bx land use review appeals. Per
state law, no appeal :&,e is charged to recognimd
organizations for the appeal of a Type II or Type
Dx land use review and the site must be within
that neighborhood or community arganfa:ation's
boundaries. To be deemed •recogrri7«1' by the
Office ofNeighbomood Involvemmt (ONl), the
organintion has to abide by the Oregon Public
Records and Public Meeting Laws. and ONI
requires 1hat any vote of the neighborhood
usooiati.on be in accordance with the
organjntion!s bylaws.

"b. Type m land uae review appeall. The Director

.may waive land use review appeal fees for
recognized organizations for Type m land use
reviews if all of 1he following conditions are
met:
Page9
 ER-10

1 Director is reapcmaible for implemmidng PCC Title 33, PJeoning and Zanin& and
2 may delegate review and deci.licm-maJring authority to BDS staff),
3 Petiti.onar argues that the city milCOD81rued the applicable law reprding
4 local appeal submission n,quiremmt.1. 8• ORS 197.835(9Xa)(D) (LUBA "shall
S reverse or rernmd the land \188 decialon under review" if the board Buda that the
6 local govamment "impmperly construed the applicable law11). Petidoner argaea
7 that 1he neigbbod,ood usociatlon'1 appeal WU invalid under PCC
I

8 33.730.030{H)(l) becaUI01he appeal form WU not acrompanied by either (1) tm

9 required fee or (2) a fee waiver that wu approved prior to the appeal deadHne.
10 Petitiomr relies on Ranuq "'· City ofPonland, 29 Or LUBA 139 (1995), for the
11 proposition 1hat either payment of tho appeal &e or a prior granted fee waiver
12 requeat i, a pnrequiaite to a valid appeal, IIKi that nonpayment of the appeal fee
13 or failure to obtain a fee waiver prior to the appeal deedUne deprives the city

•t) The recognipd orpni:radon has lbmding u,

appeal. (See City Zonjng Code 8eGticm
33.730.030.P, Ability to appeal);
-J) 'Ihe appeal la being made Oil bebaJf of tbe
recogoimd orpoiration; and
"3) The appeal conmM the aignamre of the
chairperson of tho organi:mtion, 81 recoamzed
by the Office ofNeighbom.ood lnvolvmmmt.. or
the signature of other peraom authorized by the
orpnimtion, con1irmmg the vote to appeal WU
done in accordance with the orpnizration'a
bylawl." (Bold&ce in miginal )
Page 10
 ER-11

1 council of jurisdiction to hear the local appeal. Petitioner notes that the code
2 provision governing local appeal submission requirement& was the same in

3 Ram&ey u the code provision in this case, PCC 33.730.030(H)(l), which requires

4 that the appeal request mclude the required fee.

S In Ramlq, LUBA affirmed 1he city's iDtmpretation that then-applicable
6 PCC provisions required an appeal n:quest include either the required appeal fee
7 or a fee waiver that had been approved by the planning director prior to the appeal
8 d.esdHne. The holding in Raney was based on.former PCC 33.750.050, which
9 required that 11[t]he waiver approval must occur prior to submitting the
10 application." As respondents correctly point out in this case, while PCC
11 33.730.030(H)(l) is 1he same, PCC 33 .750 has bem amended since Ramaey was

12 decided.5 Importantly, the city's code no longer requires a fee waiver be approved
13 prior to the appeal doad]ine. Instead, a local appellant may submit a fee waiver
14 request and appeal request together. ENB 13.25(IV)(A) C'An application for a
1S fee waiver may be .filed concurrently with the land use review application or
16 appeal form."). In this land use proceed.mg, the city was not bound by its prior
17 code, or its interpretation of its prior code. In short, Ramaey, and subsequent

18 similar cases applying the prior city code, Babbit v. City of Porl"land, 41 Or

5
PCC 33.7SO was last amended by Ordinance No. 179980, effective April 22,
2006. Current PCC 33.750 does not conwn.former section 33.750.050. The
application in this matter was submitted in 2016 and deemed complete in 2017.
Thus, tho applicable PCC 33.750 does not containformer section 33.750.0SO.
Page 11
 ER-12

1 LUBA 151 (2001), and St. Jo,,,,,N.tghborhoodhaoc. v. City ofPortland, 38 Or

2 LUBA 275, 277 (2000), are not controlling in this cue. We proceed to review
:3 the city council's decision undm' tho cummt code.

4 Respondents argue that the fee waiver WU granted by BDS staff in

S advance of1he appeal deadJjne, "as evidenced by both tho [appeal form] as well
6 as the City Council's decision proceaaing the appeal on the mmitl." Response
7 Brief at 11. We ape with petitioner that we cannot 1ell on this record precisely
8 wbml the appeal fee wu waived. The city council did not find that 1he fee waiver
9 was granted in advance of the appeal deadline, However, the specific timing of
10 the fee waiver does not appear to be material to the city council's detamination

11 that the local appeal WU perfected.

12 lmportaDtly, c,vm if the fee waiver requeat WU approved after 1he appeal
13 deadUue, petitioner baa not established that under the current code, prior approval
14 of the fee waiver is ajurladictianal prmequiaiui to city council rm.ow. Sn, e.g.,
15 Golden v. City ofSllwrton, S8 Or LUBA 399, 405--406, q//'d, 228 Or App 7S7,
16 210 P3d 946, nrv "6n, 347 Or 42 (2009) (mr:p]airring 1hat local appeal aubrnisaion

17 requirmmmtl are not all jurisdictional requirementa). The city council exp.lamed
18 that PCC 33,750.020 provide• 1hat the Director det:erminea the rules and
19 procedmea for waiver of fees and the decision of the Director to waive fees is
20 final. The code requires only that 1he appeal be aubmitted on :fimna provided by
21 BDS, and the appeal form, and fee waiverfflluelt may be submitted concurrently.
22 PCC 33.730.030(H)(l) ("The appeal must be submitted on the forms provided by

Page 12
 ER-13

1 the Director ofBDS.i; ENB 13.2S(IV)(A) ("An application for a fee waiver may
2 be filed cancummtly with 1he land use review application or appeal form.").

3 Nothing in PCC 33.730.030(H), PCC 33.750.020, or any other code provision

4 cited to us, requires 1hat a fee waiver be approved prior to the appeal deedUne.
S The city council mund that the appeal form indicates that BDS staffwaived
6 the fee. lucord 17. The city council interpreted PCC 33.730.030(H) and PCC
7 33.750.020 as satisfied by the submission of a completed appeal form and fee
8 waiver request before the appeal deadline. That interpimtion is not only
9 plausible but also correct. Thus, we conclude 1hat the city council did not
10 misconstme the applicable law in determining that the neigbbomood
11 associmon's local appeal was timely and valid. ORS 197.829(1); Siporoa v. City
12 ofMedford, 349 Or 247,243 P3d 776 (2010) (LUBA is required to affirm a local
13 govermnent's interpretation of its own lmd uae regulations if the interpretation
14 is not inconsistent with the express language. purpose, or policy of the

15 compreheasive plan or land use regulations).6

'ORS 197.829(1) provides:

'[LUBA] shall affirm a local government's interpmation of i11

1

comprehensive plan and land use regulations, unleas the board

determines that the local govemment's interpnrtation:
"(a) Is inconsistent with the express language of the
comprehmsive plan or land use regulation;
"(b) Is inconsistent with the purpose for the comprehensive
plan or land use regulation: [or]
Page 13
 ER-14

1 Petitioner argues 1hat the city cmmcil did not make adequate findings
2 supported by substantial evidence that the appeal was perfected. ORS
3 197.83S(9)(aXC) (LUBA "shall rmne or mnand the land use decision under
4
S supported by 111bstantial evldwe in the whole record"). PetitiODm" cbalJengecl
6 the city council11 au1hority to hear the appeal. In reaponae, the city council :lbund
7 that appeal was mbmitted before the appeal period ended, but without an appeal
8 fee. The-city then found that the appeal form indioatea that DDS staff waived the
9 fee amt that 1he decision ii final. Record 17. Those finctiuga are adequate to
10 S11PPort tho civ'• decisicm. to hear the appeal on the merits. A reasonable person
11 could rely on the appeal form to decide that the appeal fee was waived. Dodd v.
12 Hood Rlw1' Cmorty, 317 Or 172, 179, 85S P2d 608 (1993) (substantial evidence
13 ii evidence a reasonable person would nly on in making a decision).
14 C. The BDS deeido•
15 Tho city council found that BDS staff waived the fee II evidencecl by the
16 appeal fmm, Aa a threabold issue, petitionm' argues that 1here is ,no evidmce
17 regmdins who marked the 11[Y]" on the appeal form 11[Y] [N] Fee Waived9' or
18 whml that mark occmred. Tho city COUDCil found that BDS staff waived the

"(c) Is incoDsistent with the underlying policy that provides

the basis far the compreb_ensive plan or land use
regulatian[.]"
Page 14
 ER-15

1 appeal fee based on 1he appeal form. We conclude that a reuanable person could

2 rely on the appeal fmm to conclude that BDS staff waived the appeal fee.
3 Petitioner next argues that the BDS fee waiver decision is ineffective
4 because a waiver must be decided by the Director and not BDS sta:tI. We agree
S with respondents that the city council did not err in concluding that BDS staff
6 could and. did waive the appeal fee. The Director was not requhed to per80D8lly
7 decide the fee waiver request. While the Director is ultimately responsible for the
8 decisiom and recommendations required of the Director, the city has authorized
9 the Directm to delegate review and decision-making authority to BDS stafE. PCC
10 33.710.090. PCC 33.910 defines "Director ofBDS" as the ''Director of the City
11 of Portland Bureau of Development Services, or the Director's designeo." Al
12 respondmta emphame, the city's code requires the Director to issue a decision
13 or take other action in numerous instances. The code does not require 1hat the
14 Director personally decide or expressly delegate authority to BDS staff for each
1S aetion or decision for which the Director is responsible. 'Ihe city council found
16 that the BDS staff fee waiver decision was the final decision on that matter, md
17 petitioner bas not established that intmpretation is .implausible. ORS 197.829(1);
18 Sfporen, 349 Or 247; seen 6.
19 Petitioner argues that the fee waiver decision is not e:ffec,tf.ve because the
20 appeal fcmn does not contain a signature and BDS did not provide notice of the
21 fee waiver decision. The city's code does not require the fee waiver decision be
22 reduced to writing with findings, signature, and mailed notice. Petitioner's

Page 15
 ER-16

1 argummt conflates three distinct i11Ue1: (1) whether the BDS feo waiver deciaim

2 wu eftoctive to waiw the appeal fee; (2) whether the BDS fee waiver deciaion
3 wu ''final" for the pmpoaes of the city council'• rmew on appeal; and (3)
4 whether the BDS fee waiver decision ia "final" b the purpoaea of LUBA'a
5 review.
6 We peviOUlly reaolwcl the question of wbdmr the BDS deciaian wu
7 final for purpoaes of LUBA'• review in our prior order. RiNnuw Abbq
8 Mmuolt111111 Ctmpm)' v. City ofPortlawl, _ Or LUBA_ (LUBA Noa 2018-
9 016/017, Order, Oc,t 12. 2018). Tho city moved to diarnfss petitioner's appeal of
10 the fee waiver deoiaion arguing that LUBA 1acbd jurisdiction to review that
11 decilion because the fee waiver decilion wu an unreviewable miniatmial
12 deciaicm or it wu mtirnely filed. We rejeatasd the city's jurildiotional ch•Uenpa
13 and clmied the motion to dismiss. We chancterimcl the fee waiver decision II an
14 intmiocutory decision in the local appeal that became "final• for pmpow
15 LUBA's reviaw only whm tho city council iuuecl its final decision on the mmi11
16 of the application and appeal. We conc1udecl that we had juriadicticm to nwiew
17 the fee waiver dMillion II an in.terlocutmy deciaion made during the couno of
18 1m local land use proceeding that enJmineted m. the city oouncil'a final land uae
19 cleciaion. Wo did not conclude that the fee waiver deciaion wu an indepcmderrtly
20 appealable final hmd use deciaicm S.. Y ~ v. Tillamook County, 51
21 Or LUBA S46, SS2 (2006) (LUBA 1acb jurisdiotion over mtorlocutory deciaicma

Page 16
 ER-17

1 in the absence of a final decision; however, in an appeal of the final decision, a

2 party may raise issues regarding the interlocutory decision).
3 We also rejected. the city's argument that petitioner's appeal of the fee
4 waiver decision was untimely, observing that the fee waiver decision was not
S "final" for pmposes of our review wbm the appeal form wu marked ''received
6 by" BDS staff. We observed that the fee waiver decision lacked sigoatures that
7 can be a necessary component to constitute a final decision for pmposes ofLUBA
8 review and juriadiction under OAR 661-010-0010(3).7 Rtwrvin .A.bbsy
9 Mausoleum Company v. City ofPortland,_ Or LUBA_ (LUBA Nos 2018-
10 016/017, Order, Oct 12,2018) (slip op at 1S). We didnotconcludetbatthe city's
11 code requires the appeal form or fee waiver form be signed by the Director or
12 BDS staf£ To the exumt that was implied in our order, we disavow 1hat
13 undorstanding.
14 The fee waiver decision was 11final" for the purposes of the city council's
1S review in the sense that the city council reiused to review DDS staff's

16 detmDination that the neighborhood association had satisfied the conditions for
17 a fee waivar, an issue that we discuss muier the second and 1hird assignrne.nta of
18 error.

7 OAR 661-010-0010(3) provides: "'Final decision': A decision becomes final

when it is reduced to writing and bears the necessary signatures of the decision
maker(s), unless a local rule or ordinance specifies that the decision becomes
final at a later date, In which case the decision is considered final as provided in
the local rule or ordinance."
Page 17
 ER-18

I The city council held that a BDS staff dfflision, ev1dmcod by the appeal
2 form, W11 aufiicient to waive the appeal fee for purpow of the local appeal.
3 PetitlODm' has not demanatratad that 1be applicable law requjrea a signature on a
4 city fee waiver decision for that decision to be effective for purpo1e1 of
S p.roceedina wi1h a local appeal and we ocmclude 1hat the city council did not err
6 in relying on an nrvrigned appeal imn to delmmma that the appeal fee was

7 waived.
8 Petitions next argues that the fee waiver decision ii not effective because
9 the city did not provide notice of1bat decision. Petitioner appean to nly on PCC
10 33.730.015(1), which provides that the BDS Director will mail notice of cmtam
11 quu1..judiciaJ. deciaiona to the property owner, applicant, and any pmon or
12 orpnization who submitted written comrnen11.• It is not appmmt to us that the
13 procedmea in PCC 33.730.0lS(P) apply to an appeal fee waiver dociaicm. which
14 is not a Dh'ectm"a lad uae decilicm for which the city provides a quaai-judiaw
15 proce91. Petitioner citea no other applicable rule that requires written notice of a

16 fee waiver decision. We reject petitioner's argument that the fee waiver cJeciaiaa
17 is ineffedivo due to lade of wri1tm notice.

1 PCC 33.730.0lS(F) provides:

"Notice of decillon. The Director of BDS will mail notice of 1be

decision to the owmr, the applicBDt if differmt. and to any pmon
or orpnimkm who mbmiUecl written CODlrnerdl, Seo
33.730.070.F, Type I, Type Ix, and Type IV notice of decision.11
(Boldface in orlginaJ )
Pap18
 ER-19

1 Even asltUtling ibr the sake of argument that PCC 33.730.0lS(F) applies

2 to the fee waiver decision. and requires BDS to provide writtcm notice of the fee

3 waiver deciaion, the city's failure to provide notice is, at most, a procedural mor.
4 We may remand a land use decision or limited land use decision for procedural
5 error only if the procedural mor 11prejudiced the substantial rights of the
6 petitioner." ORS 197.828(2)(d); ORS 197.83S(9Xa)(B).
7 Peti1ioner has not alleged or established any prejudice to its substantial
8 rights due to the city's &ilure to provide written notice ofthe fee waiver deaision.
9 PCC 33.750.020 provides that the Director determines the rules and procedures

10 for the payment offees and fee waivers. The applicable administrative rule, BNB
11 13.2S(IV), provides that the Director may waive the appeal fee for a Type m

12 appeal proceeding if certain conditions are met. However, the city's code and
13 adminiatrative rules do not appear to provide lllY procedure for a party to
14 challenge aBDS decision on a fee waiver request. Instead, the Director's decision
15 is final. Jn this case, petitioner was aware of the neighborhood association's
16 appeal and fee waiver request and petitioner challenged the fee waiver during the
17 appeal proceeding before the city council. Petitioner appears to have been
18 provided a full and &ir hearing in the subdivision appeal proceecUng, and

19 petitioner does not argue otherwise. Petitioner has not established. any prejudice.
20 Thus, petitioner's argument that the city failed to provide notice ofthe appeal fee
21 waiver decision provides no basis for reversal or remand.

Page 19
 ER-20

1 In sum, the city council did not mi8COD81rue applicable law or mab a
2 procedural error prejudicing peti1iOD.m"'a mbatantial rights in docjding 1hat the
3 logal appeal wu valid, and tho city council's decision is supported by substantial

4 evidmoe.
S The fil8t usigmnmt of error ta denied.
6 SECOND AND THIRD ASSIGNMENTS OP ERROR
7 JJ mcplainecl above, the city council decided thatBDS staff'gremed the fee
8

9 dectinod to reviewpetiticmer's maJJmgea to the merits ofthe BDS deciaian to

1O approve 1he fee waiver. Jn the aeroncf and 1mrd u•ignmenta of mror1 petitioner
11 argues that, mm if DDS staff made a final decision waiving the neigb.bmhood
12 8880mation appeal fee, BDS ltaff med in approving the fee waiver n,quest. The
13 city council did not review whether BDS staff properly allowed 1he fee waiver.
14 lnltead the city council declined to review the fee waiver decision. Accorclingly,
1S we review the second and thinl emgnJM•ts of error ibr 1epl correctneas and
16 intapiet 1he applicable law In the fint imtanoe. ORS 197.83S(9Xa)(D).
17 Petitioner fint argues that the fee waivs form does not mdioate that the
18 appeal fee wu waived or that the neighborhood orpnfmlon wu nodiied ofthe
19 waiver decision. A, aplained under the first Ulignmmrt of mor, the city relied
20 on the appeal form. and not the fee waiver form, to determine that 1l1e fee wu
21 waived. In the oircumstancea of1his cue, the fact that tho fee waiver form doea

Page20
 ER-21

1 not indicate whether the waiver request was approved does not invalidate 1he city
2 council's conclusion that BDS staff'waived the appeal fee.
3 Petitioner next argues that the applicable regulations do not allow BDS
4 . staff to rely solely on the applicant's representations to conclude 1hat the
5 conditions for a fee waiver set out in ENB 13.2S(IV)(A)(l)(b) were satiafiod.
6 Respondents respond that BDS staff was not required to independently evaluate
7 whether 1he appeal fee waiver conditions wme met. but instead was entitled to
8 rely UJ>Oll repre1mtatiom contained in the signed fee waiver form.
9 A recognized organization may obtain a fee waiver for a Type m land use
10 review appeal if all of1he following three conditions are met: (1) the recognimd

11 organimtion has standing to appeal; (2) the appeal is made on behalf of the

12 recognj7,ed organbmion; and (3) the appeal contains the aignature of the
13 chairpanon or other persons authorimd by the organization, ccmfirming the vote
14 to appeal was done in accordance with the organimtion's bylaws. ENB
15 l 3.2S(IV)(AXl)(b). ENB 13.2S(IV) provides that BDS will consider fee waivers
16 on a cue-by-cue buis and that the BDS deciaio:n is 1'1inal,11 in the SCll80 that the
17 city provides no review of a BDS fee waiver decision. Consistent with that
18 procedure, the city council declined to review or decide petitioner's argument
19 regarding the co.r.rectness ofthe BDS appeal fee waiver decision. Record 17.
20 It is undisputed 1hat, at all relevant times, the neighbomood B880Ciation
21 was and ii a •-recc,gn;mf organization'' under the city code. PCC 3.96.020(B)
22 (''Neighborhood Association: An autonomous organir~tion formed by people for

Page 21
 ER-22

1 the puipoae ofconaidering and acting on iaSUOI affecting the livability and quality
2 oftheir NeighJ,omood, formally ncognimt bytbe omce ofCommuuiiJ &; Civic
3 Life, and subjeot to Ciapter 3.96.11) . PCC 3.96.030(0) povidea benefita,
4 responaibilities, and ccmsequence1 of fmmal neighbomood association
S reoogniticm:
6 •1. Any Neighbmhood Alaociation meding the minimum
7 requirmnenta utabUsbed by 3.96.030, upon request. is entitled to
8 fmmal nicognitinn and benefits from the Office of Community &
9 Civic Life pursuant to the adopted Standards.
10 "2. If a Neighborhood Auociation fails to meet the minhnum
11 requirmmmts of 3.96.030, the Oftice of Community & Civic Life
12 may, pursuant to the adopted Standarda, IU8peDd partial or all
13 benefits to 1hat Neighborhood Association and may ultimately
14 revoke formal recopition of that Neighborhood Aaaociaticm.''
1S A recognjri orpnintion must abide by the Oregon Public Records and Public
16 Meeting Laws, and any vote IDUlt cam.ply wi1b. the ozpnimion's bylawl. BNB

17 13.2S(IV)(AX1Xa).
18 We do not undmtand petitioner to dispute 1hat 1be neighborhood
19 ll8IOCiation had ltalJcting to appeal or that the appeal wu IUbmitted cm bebaJfof
20 1he neighborhood •IOCUlticm. Petitioner argues that 1he neighborhood
21 uaocJation did not follow its bylawa in voting to file the local appeal.
22 Specifically, petitionar argues that the vote was conducted at an emetSeDCY board
23 meeting on J'anuary 7, 2018, and tho mpniza1icm'1 ~ minutes mil to
24 demonstrate that an emerpncy meeting wu neceaaary, as zequjred by the
25 organimtion'1 bylaws.

Pap22
 ER-23

1 The neighborhood association's bylaws provide, in part:

2 "The association, in all its activities, shall comply with the
3 requirements of the Southwest Neighbm:hood, Inc., Office of
4 Neighborhood Involvement [(ONI)] Standards for neighborhood
S associations." Record 3766.
6 The ONI standards for emergency meetings provides:

7 "F. Notice for emergency meetings

8 "Emergency meetings may be held with less than seven days• notice
9 but not less than 24 hours' notice. Direct notice as timely as
10 practicable under the circumstances shall be provided to member&
11 of a board or committee that is meeting, and to individuals and news
12 media that have requested notice. Notice to the general public shall
13 be provided as set forth above in this section E, 1, a: Notice • • •.
14 Parties who are known to have a direct interest in the topic of a
15 meeting should receive direct notice, mm if thoy have not
16 specifically requested so in writing. Minuta of t1u, emergency
17 meeting ahall state the nature of t'he emogency and state why the
18 meeting could 110t be ds'/ayed to allow at least seven daya notice.
J

19 Memben conducting busineu at the meeting may make decisiom

20 or deliberate toward decisions only on the agenda topic or topics for
21 which the emergency meeting was called." Record 3776 (emphasis
22 added).
23 luspondmts do not dispute that the neighborhood uaociation was bound
24 by the above standards when the neighborhood association voted to file the local
25 appeal. Petitioner 11111JC8 that the mighborhood association's January 7, 2018,
26 emergmcy board meeting minutes fail to state the nature of the emergency and

27 argues that the vote on the appeal could have bem conducted at a regular meeting.

Page 23
 ER-24

1 Petition for Review 36, Record 3782-84 (Jan 7, 2018, meeting mimJtea).'
2 Potitioner argues that 1be neigb~,od uaociation'a president inco1'rectly
3 npea n1ted 10 city staff that 1he neishbmhood uaociation's vote to appeal was
4 done in aocordmce with the organization'• bylawa. Consequently, petiticm.er
S argues, city staff" erred maraz,ting the fee waiver, which meena .tlu, local appeal
6 WU invalid. the city council tb.ensfore lacbdjutiacticticm 10 hear 1he local appeal.
7 and. thus. we must revmae the city council'• cleciaion.10 We disagree with
8 petitkmer. Bvm usuming that 1he neighborhood mociaticm's minutes did not
9 conform. to it& bylaws. that fact provides no buis for ftMl'Ml or remand in this
10 procee a;ng.
11 PCC 33.730.030(H)(l) requhes the appeal "be submitted on forms
12 provided by the Director of BDs.• 'lbe applicable admmiltrative rule requires
13 that tho fee waiver form. oontain the signature of a penon aulhorized by the
14 recognized orpnimion, •confirming tho vote to appeal was done in accordance
15 wi1h the orgmrimion'a bylaws." BNB 13.25(IV)(AX1Xb), The fee waiver form
16 IUpplieB check bcml fbr the appellant Ol'pllll'CQQ to provide, mformaticm
17 establishing 1hat the cqanimion has 81:aocling. the appeal la made an behalf of
18 the orpnjzltion (and not an individual), and that the vote to appeal was made in

• Griffith attended and made cornrnmta at the January 7, 2018, meeting.

10 Petitioner appears to
auume that the heminga ofJicer's approval would be
revived by a LUBA decision revming the city council's dtmial decision.
Page24
 ER-25

1 accordance with the organization's bylaws. Record 3741. By fi]]ing out, mgning,
2 and submitting the :lbrm, the individual who purports to act on behalf of the
3 recognimd organization confirms and certifies the facts that suppmt the
4 conclusion that the conditions for fee waiver me met. The city's fee waiver lUles
5 do not nquire BDS ataffto independently evaluate whether the organiu.tion's
6 vote conforms with 1he organimtian's bylaws. Instead, BDS need only conclude
7 that the person who aigoed the appeal represented his or 111tbority to act on behalf
8 of the orpniation and represented that the vote to appeal cmformed with the
9 organization's bylawa. The authorized signatun itself coDStitutes the required
10 roproscmtations.
11 Hare, the neighborhood organization's president submitted the fee waiver
12 request and certified that the vote to appeal wu done in accordance with the
13 organization's bylaws. BNB 13.2S(IV)(A)(l)(b) reqairea a sigaamre,
14 "confiradng the vote to appeal was clone in accon1ance with the organizatim's
15 bylaws.• The rule does not require the orgmriuti.on to submit confirming
16 mdenco. The fee waiver form c1oea not rsq,,,n the organiration attach the
17 minutes of the meeting at which the appeal vote was cast; instead, the
18 organjmtion may confirm the appeal decision elth.r by attaching a copy of the
19 minutes from the meeting when the vote to appeal was takm or simply state the
20 vote results. Record 3741. In this case, the neighbomood associa1ion provided a
21 copy of the minutes and stated that the vote to appeal was unanimous with smm

22 in favor and zero opposed. Id.

Page 2S
 ER-26

1 While we understand petitioner's concem.1bat BDS may potmtially waive

2 a fee for a recognjzed organimticm. that incorrectly certiiie& that it aadaflea the
3 fee waiver ccmdi.1icm, the city's administrative N1es and 1an.cl uae review
4 regulatiOM do not require BDS atatJ to ..look behind 1he curtain" of1he appeal
S and fee waiver forms submitted by a recogniml organi:ration. We agree with
6 reapondenta that die signature criterion in the administrati.ve rulos and on 1he
7 required forms repre1mltl 1he city's policy choice to accept a party's

8 np1cseo.tation1. To 1he mmt that th.me may be miarepl'Bsentaticms or proceclural

9 irregularlties in 1he recognimcl orpntration's process in appmving, authorizing,
10 and submitting an appeal and fee waiver request, the city does not provide any
11 poceclure withm the land use review process to contest 1he organimion'a
12 certification on the city's forma.11 Similarly, we do not review the BDS fee
13 waiv« deciaion to determine whether the neighborhood 111ociation aatisfied the

14 fee waiver conditions.

11 That ii not to say that al1epticma concemins misrepreaentations stated u

part of a neighborhood uaociation's application for a fee waiver cam,ot be heard
and resolved in an appropriate non-land use forum, with potmtial ccmsequencea
to the mdghborhood auociation. Pmmmably, a dispute regarding a recognized
arganimtion's nonr.ampUance with its bylaws could be presented to the Oflice of
COTDTDgnjty & Ovic Life. S. PCC 3.96.060 (providing that responsibilities of
the Office of C'-omrnunity & Civic Life, include recogmzing. suspending. and
revoking formal recognition of a Neighborhood Association and establishing
grievance procedures for Neigb.bmhood Associations).
Pap26
 ER-27

1 For purposes of resolving the second and third assignments of error,

2 petitioner,s allegation that the neighborhood usociation violated its bylaws does
3 not provide a basis for LUBA to conclude that BDS erred in approving the fee

4 waiver, and thus does not provide a basis to reve:rse or remand the BDS decision.
5 The second and third assigmnerrts of error are denied.
6 The city's decision is affirmed.

Page 27
 ER-28

Certificate ofMailing
I hlnby certiiJ that I and the fanaoiDa Final OpiDimJ. ml Ords fm LUBA No. 2018-
016/017 on Jmmary 4. 2019, by m•Dins to llid parties orthmr attmmJ • um tJOV/ tbmol'
oonmned ill a -1ed mmlope with p)ltlp peJ)lid addrlaled 1:D uld pmt:lea orthm attome,
•1bllowl:
CmlelUclds

888 SW Pifth A'YIIDUD, Suite 12SO

Pmtland, OR 9'1204
Cbriltopblr p. ICo'blclc
HatbawlJLmm IJ.P
1331 NW Lcmjoy Stmet Sui1B 950
Pm11ad, Oll 97209
Lllmm.Xma
Deputy City' Attmmy
Portland Ci1f .AUnmey'a Oflb
1221 SW 4thA'Wlllle Room430
Partland. OR 97204

Dated tbla 4th dq of Jmm1r1, 2019.

 ER-29
APP-4

City of Portl~nd, ore,on - Bureau of Development Services IE_

-,-.
1900SWFe,urthAvenue ,f'ortltnd, Oregon 97201 f503G..7JOO Iwww.portlandor.egon.gcwlbds -

Type IH Decision Appeal .Forrn ILU Number. Wl6-2I3734LI>S BN MBV i

r:oR INTAKE, .STAFF USE ONLY

,
Datemma· Mtctlved ll11.p& • :Z.:'iit th ll .AcllonAttaohed
RacelYed By Ml~ 811.t:Af;l,ibtt.b F•Amount
t:;a1t~ 41 "'''
At,plalDaedb.,..,.
. ,111111
I I! I r)(l lN.I Fee Waived _
IJ Ente•d lnAppeal Log Blllt +
2-- -t' i ·~
ll'D'
CJ Noflce to Auditor M ~ Unincorporated MC
lJ NOtlca 1tt Dev. Rlvlew
/,PFELl/\tJ;· Co ,1i!do ;;If s,ctior,:; lKlu','.. Plc-;:,sr: pnd 1eg,01r.
PROPOSAL SITEADl)RE88 Subject propocrty ii a<ti-.it 10 0319 SW DEADUNE OF APPEAL _Jaaaary 12. 201J
Name Soulh~ Neig'bbodlood AtaocJation.
AddNM 7681 SW Clpi\olHwy. mt, Partt.ad bdlllZlp Cod•_ OR. 97219
Day·Phont (509) 2~-0ssi EmaU ablia-sn1idoal@Bw11i:cq r:.x - - - - - - - - -
___omoo
tntereat In proposal (appUcant. neighbor. ew,)._Ni_fiahb_· __d_-Asaoclaticm
___- - - · - - - - - - - - - - -

Zonfna Cod• aecnon sa.::ra . ~•.- %,bing Code lectlon3S, _ _ . _

Zoning Code s.cuon n. _ _ . _ ~lngCoda&actton31.'_- - · -
Ducrlb• ~ the propONI does or doaa not meet tM 1pecflic apprwa1 crftitril klentlflad above or
how the City •r.red procedurally.:
-Seti.A~

Appa11a..r-·11gnature _rm:·-~ :ii:

FILE THE APPEAL'"' SUbmlt the tc,llowlng:
•
•.,Thll' DQffll)llllld appealiDrm
Iii Ar:apy aftti, ,YP. lll'°"*ldn btq appilllled
a AIII IIPJ*l r.i. •1ollow8:
D AppNl-flleu81atu ln-11e Declllon,~to Cllf af Pofll•
JI'" Fae 'WafNrforONI ReaDgnlRd 01D8natlonl approved (... inatruc11Dn11,lnder Apptlfs Feel Aon back)
a r=ete walYel reqUlllt lalterfol' lr,il frfcon'le ~ J IHlcin.d and a\taab!Mf
D f.ee.walverTtqtiMt lMilrfor~llld-Mllltnamilt·COunty ~ntted arganlzdQnl la a~ atd dached
n. City muet ~ the appNl llf 4;30 pm on tfi• deadllM lllled In the Dealalan la onler farU..Qpllll 1D a. '1.illcl. 1b 1111
tha....,..t, IQ!llltfllloomp!Nld lflP8lleppllcatron a1ld •(orf8ew.lnrnqaatu...,.ble)-Jtiflalttt.C4lp1lan o.d:oll
lhee FI091'0f'tlDGS'IV•Aw. Portland. ONaon.NtwNn ........................... M-.
=--~~==:=:==rs:r1n11~.appl!olnt,thoaev.tio~~om,W!'
__,,,,...,...,,.,,,,,.~and,_....,_,. on,,. fil'*
lllfomtdon J11CHIB1T ~. /
ia2,-+
·- hat lblm.
1

3737
LUBA Record Page 00159
 ER-30
APP-5

Type Ill Appeal Hearing Procedure

A 'l)lpe Ill Daciston may be appealer.I anly.by th• appltcant. the owner, or~~ who have teaUded In wrftlng or ~fly Jt
the ~ g , pra\'kflld lhllt 11W ladmCJ11Y waa d.fnlcled to a a,s,,dftc •pprowal crftlll1o11, or procmtura.t ermr.mada. It must be
tll~ w1lh the a ~ n g fee by the d111dlfn!t •i.ted In thtt dlldston. The· appael raquaat mull.be aubmllted on V. "IYP•
111App'81 Fom, fJIOVldad by.the City and Ji muat.tnQ.IUda a afatement lndloatlng which aftheappJlcable approval ct'fteria
the (l,Jclalon vlolallcf(:,3.780.030) orwhat'~rat armN were made. tf the decillon was to deny Iha proj:loaal, the
appeal must use 1he IIBffle f9rm and ,di;tn,u flaw lhe propoea1 meef* all the·apptOVal criteria. Thar• la no Jocal Type m
Appeal fol' 088U lo unlncorporatad Multnon'llh Coooty.
Apr:,•1 H.tnga for Type 111 DedBIDnB ara scheduled 1w the City Audllor atJaa•U1 dayufter ttie.11ppeal lafiled .nd the
public raica of the appeal tu bHTI malled.
Appallanfs lhould be 1Jf$anld to make a p1'118811tafion to the City councn at 1he hearing. 4n addition, '4111 ~ d p.,
son, wlll be able la Jestify onally, or In writing. The 9fly Counoll may ohol!lla 10 ·111h1l the litnathof the tutltnony. PliOr to
the appeal hearfng, the ~ Council will·RICBlva till wrtltan cue .recc:,n;f, lncll.ldlng the appNJ.atalement. The City CQuncll
may adopt. modify, or overtum the·demlllon of tha 11131'NIW body balled an the infDrmal1on P18aehted at the haal1ng or lri
t.he ma reoord.

AJapealFe•
In order for an tqiJpaal ta be valid, tt mllll be aubrn~ prior to the-•ppeal det1dRn11 •• atatlld !n the dedalari and It muat
b& acconapankld by tha t11quhlld appeal fee er an approved fee waiver. Ttle fee ta appeal a dll(ulon It one-half of the
original application fee. The fie amount 11 llated fn the dllclilion. The fee may he·w*llved as followe~

F• ~ (S3.TIO.D11iD)
The dlnlctor may waive requlrad ,_. for Offlca of Neighborhqod Involvement (ON.I) Recogniud Organlzattona ud
for low-Income appllaants when ae,-ln reqairernanta.,111 rr,et. 'Iba diicllliDn of-.the dlreclor Is flnal.

A, ONI Recognbtld Orpnlutlon• FQ W.lver

Nefghborhood or bUslnus organ(Jaffona ...cagnlud by Che Clw of Pol'fland Offioe of NelghbGrhcod ln'IDlvel'l'lent
(ONl).or Multnomah Counly are eligible to apply fOr an appeal fea waiver If th•y ~ certain meeting and voting
requlremema.
Thase TeQUlren18111s are Jfatetl In tha "fyp.e mAppeal r• Walvar Request forOrganlzallOl'll!I rom, and lnatructlon
ahast avahble frcni tha SUreat.1 of Development Servl01S 'Develaprnent ~ eant,r. 1" fli:lorr 1900 SW ,41h.
Porlt11nd, OR 97201, Recognlied o,garilmtlona must complaa the '.frpa Ill Appeal F~ Waiver ReqU81Jt for O,aam-
zatrona form end submit ft Prior tb the apPNI deadline 1D be coneldel'ld fore fee waiver.

a. I.ow Income F. . Waiver

The appest fee may bf! wal\Md.foran lndlYldual who 11 an applicant In a li,nd UH review lorfhalr pnonal r81i-
dence, 1n which they have an ownmhlp ktlantst. and the .lndl¥.ldu.-l la appealing the Glldlllon· of 1helr·land uee
NIYlaW applloation. In ~dltlon. the appeal tea may be waived for an !ndlvldual 1811dln.g In a l',iwalllng uni~ tor at klast
BO d~, lhat 1, 1ocamd within the ,equ1red nDllficdon 11rea. Low lnc!Jme lndlvkluals faqueatlng a fee waiver wUI
bf requilll4 to urtil'y their annual gr:an ll'lcame and howaebold *"· 'The -...1 .,._ -I a!'llyba w•lvad for hou~
holda With a grou·annual lncol'l'II of tea ·tt1an 50 petcint of the-area mlKllan In~ es eatablllhad and,edjuaied
1br hOl:IHhald lilzll b)' th,a.federal Depl!Utmentot Houain; end Urtian De!lelopment (HUD), All flnanolal lnfarin..Uon
aubmltl:ed io 111,queat.a .fte wai'v'er 1111 oonfldanlal. r=ee .wa1v.r f8QU88la must be approved prlE!l'10 • .,_ deadline to
be eonaldated tor area waw.r.

3738
LUBA Record Page 00160
 ER-31
APP-6

City of Portland, Oregon - Bureau of Development Services

1toOSW Fourth Avenqe •Potl1and. Qregon 972l>t I503-829'-7300 I www;po.Uandon$on.gov/bds
---- - . -

Type llt·Deciafon Appeal Fee Waiver Request for Organizations

DRCIANIZATION NMIFIC:A'nON
DaWl'lm• ------------1
....... _ _ _ _ _ _ _ _ _ _ _ ,
Repll"9dBy

FIie Nqblber W 16-213734-IDS BNMBV .Appeal Deadline .,._ .JmiWU')' lt 2018

orsanlzatlon and Appaal Information
Orpnla.lon Muna Sou~ Budloaame~,Gll~ood~ltioa
P.INDD Authartad bJtfie Orpnatlontofll•tJaAppHI_R.obmt
____
. - ~ --
. ----------
ltr99fAddntas 7688 SWCa]!itoUJwy.
caw Portllll4 ._. OB. 11pODc11_m_u,_··---
Da,-Pmm• (.503);209-05~ F.AX._ _ _ _ _ _ __..eman · ~ · ! ! I
By algnlhg this form, the organlmtlon contlrma th.et:
II yee O no The orgamalkm lllalHlad many or 111 *'1tln9 et the hearing., anc1 ..,. tn11mony was dnctad 10 a
epeclllcappro'VII crltel1on; •
II ) 9 CJ no The appeal 1B beln'1 made on bBhlllf of~ l'eqnlzed organization, an<I not on **1alf rl an lndl·
'Ylduat; and ·
-II yes [J no• The vate ·lo appeal wae danl-ln accordanoe \tlfh the organlzation'I byfaws.
Nameffll!• ,• -1-f.to.an..
8'tgnatcn/Dale ~ . ' .· . ·.Preaident.·
. ~.
~. ,•
? ..,??
.. 1IIIIUll'Y 11, 2018
PJ,8• aompl• all of'the~on req118111d ~ .
aae ravaraa llriefor addlllonal 1n1brmat1on on fee walwrrequil'ama•

.dlclllon to tP,pllll WIIII-. by•• 9' (oh•clc ona.ofthef'Qllawl"I):

CJ 1be geneA1l tnamb1111hfp In a l'D8ettnr, ofh qanlatlon u 1111ld ll:love.
II The ban:! In a .muting of'the organrzallon ~ IJlled ab«Mt,
[l 11'tt land U19 subcommfttH In ~ ffll.8"'"9 of·tht Oft111"1tEatlon 8':N9*f a\la¥8•
..... ,ru:1u. • IIUl·Olllt-ofb'fl;lllowfng:
11 A copy cl the mlnUIII fl'Om tile meatita When the'VG181a appeal Wll 'tll•n.
11· Vote JaSUIIB~ appeeJ-Nunar af'YESVOIBID a p ~ Numbel'Df NOwtea·to appeat__!_
'lb request• .wer of an appeal fell fDr a land .we nmewtaldt:
0 this-completed fee waiver requaat farm and·an, !JUpplemental Information l'IIICllay-to ciu-llf)' for • fa•welVar.

...-r
TI1• Qrmuat,....lhe11PPM1l fe1 wahlarNq...taad ftle...,.lar"=IP pm onflle deadtlna lJIIICI lnth• Daclab:m In
orr,!erfcir 1118 to N Vlllld. 'lb 111• h.,,,..I; 1ubmlthe cempteled app111l appllaallon -.- • . . . _ applk,itlan
atb Reception o..Jcon lh• Ith Fioor of 1IIO 8W "41hA,a, Portand, ON9on., l'IIIWNn l;OD • llld t:St 1M1 Mondar
throughPrldlly.
1

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APP-10

j
•J

i
I

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APP-11

Robert N. Griffith
~l? SW Ta.)'lors Fmy Rd
Pmtland, Oregon 97219
Phone 503-523-6997 (Direct)
r~x.netcom:cotn
l
January 12, 2011·
'
Land Use Appeal, Rm.ew
Fee. Waiver Appeaia Review
Burell\1 of Developnutl.lt &em=~
1900 SWFourtb.Avemie
Pottland. ~ 97201

Re: LU 16-213734
Appeal request by SBNA
Pee Waiver requestby SBNA
Key intbrmation indicating SBNA
Violation of ONI Minimum Standards

Time-Sonsitiye I Hana D;lmred

Dear Land t)se Appeals Re\liewcr~
•
Bhclosed Js ~ and timely uifotmadmi .n:gardtng a Appeala Fmm and Fee Waiver Appi:a1s
Form subu:ilsslOJl by the $outh BurIUJSamc N~ghborhood Associlrtiop ("'SBNA'") which!
uodetatand WIJ'O submitted on Jll:iUmy 12, 2018 regarding LU-21'3794. 1 am wrft:i.og tbis let1m'·&s
a.'Member afth.e SBNA and repre$eatative for Rivm:v~ Abbey ~oleum Co for
Neis]lborhood Asaociatinn matters. lUtmview Abbey .M&µIIQ}eum Co-is the applicant in LU 16·
ll 343 where the City iuued a decision &ppro\lUJ.I with bondi~ hs land use appltcafion.

swnrnq
Baaed upon inf'ormatiotl tnelosed, inchiding the mio:uta ·ofthe SBNA for the "Votin& meeting, we
believe you 'W'Jll fh;.d the following:· ·

• The ~NA appeal wte on W 16-213734 that oooumd Sunday January 7, 201'$, is
·invalid st.nee they did not meet the 1PNific requitailenti· ofan BmergerJOy Meeting
containeJi in 1he SBNA Bylaws which incorporates all the Q1Q":Jinnun &tandtu'ds of ONJ io.
Artiole XIV of these By1$ws (aoc.11lf8Cbmmrt),

• 8-ndly, thD SBNA Type m Appeal Fee Waiver only allo'f.,i the Appoal Pee Waiver for
an 01'g'aDmitlonJ if speclal 110Ddi1iotJs are m,eJ, The· tbitd aquirelilait of tbt Zoning Code
{Form instructions 8',aehed) ii only ~lowed if t h e ~ ..vote to appca) was done
I-#/?. &.I a 7f.~
cASBNO.. ·~ ~__..

yfa// 6j /.f: 13 PYYJ

aHJllTL·~ -

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APP-12

in ace~ wjth ~ otgamzafum.~s bylaws. As noted above, 'the m:immlJ11l ·standarm

of ONl (which are a part of the SBNA Bylaws) were not met. to .,-.answer to the.t
question is -Oo,,. ·Since the ar,eoific proconditkm.s of the Wiliver an not met, the Appeal
Fee Waiver should not be ·approved.
l)ptailpd Analyais,

The Cjty has unportant, atriQt requbemenu.for appeals "1 Its land use deolsions. Appeals 11U11t
be sqbn,J.ttec1 by a oartain time ind date. In itl decisions. tha City expressly advlaes parties the
date"°' app-1 ls .dqe and admonlihes tlmt an •PPW.2'1'12Bt be su\,niitted by 4:~0 that date.

The City requires fees for appea1a. lts rules m•te that all appeilJ be acoompanied by the
proper :Cw. An appeal witbout ibe pmper fee ii invalid. ~H. lmtmcrtion1 for Type JU A.pPeal
that arc part uftbc Appeal Form. · Because the City's fee.1 are en impmUm: part ofiis ablll1:Y to
pi'O:Ce8B apJ*.llsJ there are limlt6d instances whcm a party can abtam 1 'wam:r IDd proceed with
1 an appeal without paying the appropriate fee. 'them m: also 11:riGt requirements tc which• party
must adm to obtain a fee waiwr. Aocordin.1 to the City•s iostructi~. the D.ireotar of B:QS
may waive an appeal fee.for Orgemid.ti011S recognm!d by the Office ofNelshborhoo~
Jnvol~ru (ONI). ~ for low inCQlne applioa$. but Qnly if ccm.ain reqnitmnenta ll'C m'Cf.

Spees to ONI R.ecopizod ~limzllti- the Type m .inft>nnat'ion the City publishes about.me
waivers lists ts ~pref• requirements an organizatien must meet to qualify .tbr a fee waiver
CODSidcration:

• 11\t mgmuzatio.n must~ 1tanding to appeal: •

• The appeal must be made on behalf of the orgarrizatiol'l; and
• ~ ~ cc)ntains the s i ~ ofthe cbairpenon or tbc:pataon authorlzed by the
~ticm,, confirmi~ that 'the vote to approve 1he appeal MS dont; in acmtPM with
1hl;DfflUl\a.Ji® bvlm.
The TypB m AppealFo.rm. J copy' of which is cmcloled, n,quins the person ajgning to confhm
fhat "~ m to appeal was done ·in accoJ."d.aoce wltq. the o.rgatdzation'.s bylaws. n The Appeal
Faun reqj,!ires that the prge,iiatlon.appei.llng inaludo a oopy ottbe mmuteis from thi ~ of
themeetin& when tbevoto to appeal was~-

SBNA ii• QNI Reoopi~ Organization. As aucm. it ho bylaws. ~ City has PQblished
st.andarda for organimiom that wish to t'N~e tbs bone.tits. of'bein$ .a ONl R.ecognimd
Organimion. Ta parlicipab: 8' a ntQpizad. mginir.adon. Noighborbood.AsiOcllltions must
~ to oamply with tbl! Standards for Noishborh.OQd ~ciati•, Businoss Coalitions,
Buainea& Diauki~ AalooiatiDDS d,l'ld Oflice of Neighborhood Invo~ roNI Standardl").,
'The ONI ~ mq,lain that the City revilccl t1u, name ofthe :impmta:pt sqmdards :!tom·
"Gul~s'*to "$~"' to mftect that'they are th~ •'Minimum Stld.dards lot Neighborhood
AsJoci,tiona.11 ~ . p: 2.
Specific Req:uimu!illltl gowm ui appeal by a neighbothood 111odaticm. and the specific notice of
meeting a. wtms is raquu,:d. Votbrg ll1Ult occur at a meeting that mectt the mUllJ?UIIP
standard ofONI. 'l1it meeting Jll.QSt eom.ply with the bylaws of the Nnighborhood .AssocisttDD,
including ONI Standards far Noipborbood Assoclatiom. A ~tical Itlquirem.ent is that, ifa

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APP-13

NeiP,borhQQd Association is go,h\g to vote to take action, lncludlng initiatiog an appeaJ, '1 flD
mnetgancy meeting, its minutas.all state the~ of the emergency and state why the
meeting could not be delayed t.o. allow at ilut . ~ (7) ~ys, notice. .StaDdanls, p. 42. Tiie ONJ
Standarda fm em.ergcm~y meeting no.1:icing ,-,qulrementl include the fallowing requiremcot.:

I', Notice for. eraer,pncy ~

Bmcqenay meetings J1$Y be~ wlth less than sov~ day& natl" but ~t lea
fbab 24 noun notice. Di~ notice as tlmei.y III practicable under b
citcQJnstances shall be provided to m.einbm of a board or ooD11,'1Jittee that Js
meeting. aJid 'kl 'individuals and JW.\11 media that haw requested notl.ce. Notice to

'°
the peral public -11 be provl(led.111 Ht .fc;nth abov. in this IIICtian B. 1. a:
Nbticc. Parties who ~ .k:nawn. to hav.a a direct intmut the topic of a.,meeting

waiting. Miqw olthe ,....a,;

ibDuld receive.direct notio.e, e'ffl1 if they have aot apeciµcill,Iy teqae.atecho in
iudn1 •ldlte!t U,i ytyr, gfthf
1mlimmy ad RH why 't)e meetlntr ilpylcl Pat bil~p to .allow at J.pat
•MP dan potlge. Membert condwting 'businea at lll=DI 'IQBY make
deeisi.ons or deliberate toward decisiom only on the agenda tt>pic·or topics for
wmeb tbo:mnorgcmcy meeting was called. QNJ Siandlttds, p. 42 (enQ!oJD(I),
The SBNA ~ l y il\COIPoi:ated, the. ONI Sta,ndatda DJ.to its ByliWB. Artie.le XIV Oftbe SBNA
BylaWB roeia: · ·

ArttcleXIV1 IWNIJ ONtS~dudl, The aaapdiatian, In ill.~f its .activities.

lhlU comply with "the r e q ~ of thtl Southwest Neilbborhood Inc. Office of
N.eJsbl,orhoad Involvement Standarda for Neighborhood I\Bsol:nationa.

According to fb~ City ,ode, the term "lb!J!'• :gwBt be interpreted u e~lijp.g 11DJD.d!d<>ry
r,qui~ rec 1.01.-0,0.x.. llld~~ tw. 111h~d.ictlP.tlm'f d~n..and tbedeiiniti~n given
to 1hat tmm b)' oeuits.

lheBJ,!INA chase to bu. 11 vate for appeal ofthe land-, decision at llll Binegqncy Board
~ {lleid Sllllday Janu-, 7, 20:t 8 at Sl 111IJ at a di$rmt l o ~ then normal). the mlnuta
of dJat mee1ing should be .included \\'itb the SBNA appeal, and anothtt copy JI inoltidod witb dll8
lf:tter, The SBNA 'failed to oem.ply wi~ tu ~ · and tnandalin'y .req~ts in it:i -bylawa.
and .fhe ONI 8-dards. ·The miuutca, which aonclblively eatablish what occurred at. tba~g.
do not state tba·:aatme·~ mu' emi,rgency oi wb1 a meeting ~Id .not be delayed 'to allow at least
seven (7) days' notice. A nprmentative mmi RivervieW Abbey Mausoleum wu pRSel\t a
tetlected in the mbmf.eB and will eonmm. that th¢ teqolted ·lllatalicntB were mver made.
The SBNA 'COuld not have, in got>d 1Wtb, mide the statement :required hr the ONI Stal.dards. It
Ji1'd a regularly ~ e d meeting.for Janu.-y 111 2018s befme tho ippeal.c1ca.dlme. The
reaw.arly iched.ule.cl meeting ofthe SBNA could avo aooOJJimodatetl a thaly $le for appea1 of
t1= i.d depiaieu aud tnet the DQl'JlW 7 day notioe requumenfa. Tm, '.!)er.uio~ ofiho ilcari~ss
oftioerwu dated Decetnbat 29, 2017 and the Am,eal.Doadline ii January 12, 2018, Since·the
SBNA received notice of the decision appro,timate]y 10 days befoJ:lt 1heir regularly scheduled
meet1n& lbem wu ti.me·to couduct the vo:te at a regular m ~ within tho normal 7 day ~tlcl.ng
requirements. If they believed it was neccamny to eot1duct tha mei,ting .ll1d the vote et an

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 ER-36
APP-14

.oiniS.rpncy :meeting. ~Y should have complled with th.oae speoific.mqulrmnc:nts ta· acbiove a
p,opor deo!sion that m,:t the nnn.inrurn ~ d J ofONI.

Furthmmore, tbe ONI Standards allow the SBNA to hold a special meeting with SfJYl!ID (7) days'
netiee. Smee~ Ooo$siou. was .Jl'lail~ on Deceml$' 29i 2Dl 7. tl)c SDNA could have pmrnptly
iswe.d a notice for a '8,1JOtlla1 meeting and conducted it well.before tb.eJanuery U 111 regular
nteeting. 'Ibc SBNA had twp optl~ps qnder wbieh it QCtUld ~'11' complied Wi'd\ the matldatol'l'
req~·in the ONI Stam.dvds $1d its byl,aw.s.

TbeJ;e.are specific mle$ and stricter-rules for D(>tico ofemerpncy meetinp in O:NI Stamlard11
since~)' rneetin.gll b,.ve lhorternopcing.requiremems 1han a normal meedbg of1ha
neia;hborhood association, Within. thol• notice rules is a requirement under 1he Seetion irJtitled
110,pen Moetinp and 'Public ~otds"·tbat a= specifm .requimmenu to conduot buline88 m,d

mike deeisilma oftho :Neigbhorhood Alsodad.cm at au Bmeraency Meelting, Those atandardli

wwe· not met.

Tim vote iaken at the einergenoy meeting wunot autb8J'm1Cl. per tho'bylaws of the SBNA whiob
inclucl" tlie ONl StendarQS for Neighborhood Assooiatiotis. Na sfateinent was aiade at~
January 7 ptherin:oftbe'SBNA tbatsta,ted "'the natmie ofthe·emergency" ~thtated why'lhe
rneetm& could not."b, delayed to allow at Jeut seveii di.yi' notice. Accorchog]y, 'the SBNA
minutes for this SBNA. 8rl.tluu'ina dhl..w.t in&• ''the nature ofthe emergency and ·stat; Why the
.meefihs could not .be delQCd to allow It leut 11CM:tt days' ntJtico•.i Since·the minutes do DPt
NJflect why :the.emergency :o:iectins (with a shQ.._ notice r.equh:mnBnt) wa necessary, tbe SBNA
faitcd to meet.taenati~og.reiaubmrienttbrtliemtc:tmg·at"Whic.hthe 'YOteto·appeal was hold.
A=ffl:lingly; any deoilion MICIMd is not in ~JQaDCO with ONI sfandarda for a .m.oetlng ofthe
neighborhood aisooiation.

Jt follc;,ws rbat any 1111eb organizatiOJI xequut for an appei.11 fee waiver canQ.Qt not be. grautm sitioe
the SBNA docs natmeet the specific requirements far ONl in the· orpnization'• bylaw-. Under
the· City's. oode, those req_uirements are mat\datUt.Y, 'Ibey &!Ill be mot.

Ccmcluligns

A vf)te to an appeal of a land• decision is a very serfous matter for a mighbomood BQDalation
to consider. All lllClll1hCll'I of the neighborhood association and the pw,lic 'Wcim afforded the
oppottunUY to be hem in lettora. testimony and rebuttal hi.the hearing for this land lUIQ tleqision
(LU 16-~ 3734} which extended ovw two dayzi. ' T h e ~ ofliODJ" even allowed an extreanci
ex.tended perloii m teapond mt ptoWle inmrmatlon to the recoid.

After oOpSiderjng 'Ill the input of the Cit¥ atafE, tbe ueqb.bomood uaoola1.iOI! and individual
mombers and tlus gm'eral public. the cleaisloil of the Hftrlnp Officer was for rt.pprpval with
COliditioos.
ltis ~ Y ari.pt of• neigltborhood uaociation to appl':ll a decision. Our filmily is also a part
of this nelgb.bodu>od auooiation. If th.me was ever a time to pt a v.ote r.ight and follow the rules
it ·111 this one. Givffl tb4 w-igbt of this d.eclBion (oi1 whother or not to .appeal) which impacts the
reaeumes and time of Ci1J· ~ and impacts the :resoureea and time, of.oqr family~ 1hc SBNA

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APP-15

:aoa.rd Mmnbers had a d1,1ty to 9onduct the meeting in accwdance with the minimum s.tudards of
ONI hi.eluded.in their bylaw.a. ~ minutes show that "these minimunutandarda·were not mat,

Accordingly 1be vote to appe$1 by tbe neipbolhood usociatien i11 not valid and the tequest for
w1lw!r ofth~ orpnzation appeal fee c1111J1ot J,e gnm1rd. Thank you for your consideration oftliia
infonnation as you consider tbeir application to appeal and request for ,sppefll fee waiw,r.

Respeclflllly,

~~~~
Robert N, Griffith
SBNA Member
cc; Rebecca, Esau
DireGtor ofBDS

3750
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 ER-38

Information about l
Tha followlng Information wlH alp n g bo , commun t;y, usmese an n us a ass ons an ,er organlza-
tlona the! 11ra recognized or Nstad In the Office of Neighborhood Involvement Directory to apply for faa waivers when
appeallng a City land use review decision. The Portland Zoning Code, the Ofllca of Neighborhood Involvement and the
Cragan statutes, whleh regulate public meetings and public records, all describe requtremtmta that associations and
0111inlzatlon1 must meet when requesting a fea waiver from the City for a land use appeal.
In order for an appeal ta be valid, it must be accompanied by the required appeal fee ar a waiver request that was ap-
proved before the appeal dead/Ina as slated In the specific land use decision (Section 83.730.020 af the Portland Zoning
Coda). The Bureau of Development Service& Director may waive a land use review appeal fee for a racagnlzed organi-
zation under certain Circumstances (Section 33. 750.050). A recognized organization rs one that Is listed by the Office of
Neighborhood Involvement (Portland ZOnlng Code Chapter 33.910).
Because the Clty understands that the tlmelines for appeals are short, we wlll allow the waiver and appeal to be submit.
tad at the same time. However, If the request for a fee waiver la denied, the appeal may be Invalid because the deadline
paned and the fee did not accompany the appael. Within 48 hours of receiving the fee waiver request, the Bureau of
Development Services Director, or the Director's delegate, wlll notlfy the organization's contect person as to whefher lhe
request for a fee waiver Is approved, or If additional Information Is needed to make a decision on the fee waiver requeist.
The Director's decision to wal\le an appeal fee ls final.

~ Zoning Coda Raguiremante,

·Ff The Portland ZOnlng Code atates that the appeal fee may be waived ror a recognized organization If all of the follawtng
conditions are met:
1. The recognized organization has standing to appeal. This applies only to appeals of a Type Ill land wse review,
and means lhat the recognized organization testified, eHher orally or In writing, at the lnlUat avldentlary hearing;
2. The appeal Is being made on the behalf of 11\8 recognized organization; and
~ 3. The app•I ca•ln• the 'ligna1Ure of the chairperson or the other person a~thortzed by the organrzatlon. con-
1 ~ ..!'!!'rnl the vote to ,appiml wn dona In accordance with the organlzallon'a b )!laWI.
Applicant contact
While It Is not a requirement of the Zoning Code, you are encouraged to notify the applicant or their representative prior
to the meeflng whltl'8 an appeal or the City'a decision wlll be dlscusNd and voted on. Thia gives the applicant, or their
rapnrsentatlve, an opponunlty lO attend the meeting and panlclpate In the discussion.

Where to obtain the 'Type Ill Decision Appeal Fae Waiver Requests and Appeal Forms
To file en appeal, 1 geparate form must be completed and aubmltted. Both the Appeal Fee Waiver Form and Appeal
Farm are available from the Bureau of Davelopmanl Services, Development Services Centar, 1st floor, 1900 SW Fourth
Avenue, Pottland, OR 97201.

2
IU twill WM nllklhbar 711111 B

3780
 ER-39

ataphlnll,
I am nm 11n of Ill etaba of th& Would )QI be wllng 1D glva avll Kaak I GIi on nw behllf
regarding ltfl 111111'1

Thlnkyau,
FllbloDII

DNr Ml. !1111:

We rapNNnt Rhlervlaw Atarf M1111olaum Co., rRlwnlllw Abbay") and pa-11111 In tha llnd ma
haring pa1111hllt aulmlnalld In I h8111np alllalr' dlalllon appruw,g RIV9MIW Atlbl,(1 appRClllan
In CUii No. LU-1M11734. The 8aull Burllngama ~ AIIOGlltlDn raaNAi - - ~ an
. . . MqUIII at . . NIID an....,
appeal d lhllt declllan an January 12, 2011 at 2:B pm. Apparanlf, SBNA lllbmltlld an 1pp1111
_,..11m1,
r..
12. 2018, lt4:14 pm, Aablrt Grltlllh. a ffllfflblr of
SINA who II Illa an IMIW d Rlvmvlaw Abbey, 111bmllld I lattar mcplumg lllllt SINA fllld tD fflllt
mlPl'I•, mandaay _....... farobllllnq an appeal• Wlllver and that lh111, 1119 IPPIII wa, nol
Rid. Yau ...,._. a capy d Y... GrtfRlh'1 latllr. QI Januay 17. 2011, lie Cly IIIUld a nDIIDI lat
lhl • hearing on SINA'I llppalll hid been aahaduled for Fabnary 7, 2011.

QI bllhalf al Rlvervw Abbay,•,....-.,...-• nelfnl ortalaphone all wllh wma •man•

po11h IO RMIMIW Abbey G111 l9CIIVII • acplllllllan ~the.._ dthe SBNA fee ...._Nqllllf.
haw tll8 Cly plaClll8d that 111q1111t. whatlw .... hM ba1n 111V dlalllan an Iha SINA NQU8II, I a
daclllon W8I mada, lhe • • far tat daalllan, and what aanaldnllDn the Clly QaVlt ID e. faal that
8BNA did not latllfJl'IIIMnum raqu"8mlnlafar olllaln a fla waiver lldatded In RIVervllw'I January
12. 2018 lelfar. We ... th11 llllllllr I I - lmpal1ant 1111111 no1 CH~ In ttdl appeal, bUt men.......,.,
OIi haw Iha City appll• nandlltDry NqUlrlmenta..

Think you In lldVanc9 far ycutlma 111d aanlldeiatlon DI 1111 raqueat.

Exhibit 2
LUBA R~ft6f:t6
 ER-40

BEFORE THE LAND USE BOARD OF APPEALS

OF THE STATE OF OREGON

RIVERVIEW ABBEY
MAUSOLEUM COMPANY,

Petitioner,
vs.

CITY OF PORTLAND, LUBA NO. 2018-016/017

(Consolidated)
Respondent,

and

SOUTH BURLINGAME
NEIGHBORHOOD ASSOCIATION,

Intervenor-Respondent.

AFFIDAVIT OF STEPHEN GRIFFITH

STAIB OF OREGON )
) ss.
CountyofMUL1NOMAH )

I, Stephen Griffith, being first duly sworn, under oath, state that the following

information is within my personal knowledge and belief.

1. I am an adult resident of the State of Oregon and competent to make

this affidavit.

Page 1 - AFFIDAVIT OF STEPHEN GRIFFITH

LUBA Record Page 00239
 ER-41

2. I am one of the principals of the Petitioner in this matter, Riverview

Abbey Mausoleum Company ("Riverview"). Robert Griffith is my brother and

also a principal in Petitioner. Riverview owns property within the South

Burlingame Neighborhood and is a member of the South Burlingame

Neighborhood Association ("SBNA").

3. I attended a meeting of the SBNA Board on January 7, 2018 when it

voted to appeal the City of Portland Hearing officer's decision approving

Riverview's application for a submission and environmental review. SBNA

conducted the meeting as an emergency meeting without the notice required for a

regular meeting so attendance was small. SBNA did not follow its bylaws and

recite the basis upon which it proceeded with an emergency meeting.

4. My brother and I learned that on Friday January 12, 2018, SBNA

submitted an appeal of the hearings officer's decision and a request that the appeal

fee be waived. Because SBNA did not follow mandatory requirements for

obtaining a fee waiver, we prepared a written objection to the fee waiver request

and appeal for submission to the Director of the Bureau of Development Services

(''BDS"). Upon receipt of the appeal and appeal fee waiver forms we learned that

the forms had been received at 2:59 p.m. on Friday January 12, 2018.

5. I arrived at the BDS offices around 4:00 p.m. on January 12, 2018

which was the Friday before the MLK Holiday. I went to the counter where appeal

Page 2- AFFIDAVIT OF STEPHEN GRIFFITH

LUBA Record Page 00240

 ER-42

fees and fee waiver requests are to be submitted. I told the receptionist, by the

name of Elizabeth, that I had a letter of objection that should be considered as part

of the SBNA fee waiver request. The receptionist told me that Mary was out of the

office. I later determined that "Mary" was Mary Butenschoen who was the

technician responsible for the SBNA fee waiver request. Elizabeth located another

BDS employee, Anne Pfaff, who came to the counter and took Riverview's

objection letter and related attachments. M.s. Pfaffgave no indication that BDS

had made any decision on the SBNA fee waiver request. In fact, she gave the

opposite impression. She told me she would place Riverview's objection in the

file to be considered with the fee waiver request and appeal fonn.

6. Upon a later inquiring, I learned that Ms. Butenscboen's scheduled

hours are 7:00 a.m. to 3:00 p.m., which explains why she did not respond to the

page at approximately 4:13 p.m.

7. After I left Riverview's objection with Ms. Pfaff, I asked Elizabeth

the receptionist to deliver the objection letter and related attachments t.o Rebecca

Esau, the Director ofBDS. Elizabeth stated that she would personally deliver it to

the Director promptly. I left the BDS reception area at approximately 4:38 p.m.

8. At no time after 4: 13 p.m. on January 12, 2018, did any employee or

representative of BDS ever advise me or Riverview of any decision approving the

SBNA fee waiver request. The first communication that a decision had been made

Page 3 -AFFIDAVIT OF STEPHEN GRIFFITH

LUBA Record Page 00241

 ER-43

was included in the City Col.Dl.cil decision on February 14, 2018. The City never

advised Riverview that either the Type m Appeal form or the Fee Waiver Request

form was a decision approving a fee waiver.

By: ) ) ~ ,--- W' )l. ~~ (L
Stephen Griffith
Riverview Abbey
0319 SW Taylors Ferry Road
Portland, Oregon 97219

SUBSCRIBED AND SWORN to before me this j

-,,t day ofMay, 2018.

4/44 ~
NOTARY PUBLIC FOR OREGON
Printed Name:
11:L~PL ,5l-,gJ<,/rJJ411
My Commission expires: z..
2' •"20 a, I

Page 4-AFFIDAVIT OF STEPHEN GRIFFITH

LUBA. Record Page 00242

 ER-44

Declaion Notice for LU 17-105503 AP

All other condition• of the original land diviaion. remain in effect.

oa ...,. 21, I017

Dec:daloa malled 11a,. ao, 2017

Allou.t tlWI Deolalcm.. Tbia land u1e decialon ia not • penalt for development. A Fin.al Plat
mult be completed and recorded before the propoaed. Iota can be aold or developed. Permita
may be required prior to any 'IIUOl'k. Contact the Development Service• Center at 503-823-
7310 for information about permit..

Procedural lnronnatloa. The application for thia land u1e review was wbmitted on
January 13, 2017, and wu determined to be complete on Janumy 25, 2017.

Zoning Code Ssdion 33.100.080 atatea that Land Use Review application• are reviewed
under the regulation.a in efl"ect at the time the application wa1 aubmitted, provided that the
application i1 complete at the time of submittal, or complete within 180 daya. 'lberef'ore,
this application wu reviewed a.pm.It the Zoning Code m effi:ct on January 13, 2017.

ORS .2.27.1 '18 atate1 the Cit;y mu1t isaue a final decilion on Land Uee Review applications
within 120-da.ys of the application being deemed complete. 'lhe 120-day review period ma.,
be waived or extended at the reque1t of the applicant. Jn tbia ca,e, the appJicant requested
that the 1 2 ~ review period be extended by 120-daya (Exhibit A.2). Unleaa ft.utb.er
extended by the applicant, the 120 da)'B will uplre on: leptemller :a:a, 2017.

lome of the lnlonutloa ooatalned In tJ1i11 repDrt wu provided It,- tlae appllaant. A•
required by Section 33.800.060 of the PmtJand Zoning Code, the burden of proof ia on the
applicant to lhow that the approval criteria are met. The Bureau of Development Services
bu mdependent:Jy reviewed the information aubmitted by the applicant and bu included
thill inlonna.tion only where the Bureau of Development Semces bu determined the
information aatiafactorlly demonltratea compliance with the applicable approval.criteria.
Thia report i• the deciaion of the Bureau of Development Semcea with input 1rom other Cit;y
and public qenciea.

Cmulttiou of Appronl. If approved, thia project ma., be aubject to a number of apecific

conditions, lillted above. Complian~ with the applicable conditiom or approval mutt be
documented in all related permit applica~. Plana and drawinp 1ubmitted during the
pennitting process mult muatrate how applicable COl\Clitiona of approval are met. Any
project elements that are ll)ecifically required by condition• of approval must be lhown on
the plan1. and labeled u such.

Theae conditiona of approval run.with the land, unless modified by fi.ature land uae reviewa.
Aa uaed tn the condition.a, the term •applicant" Includes the applicant for thia land uae
review. any penon undertaking development pursuant to tbia land uae review, the
proprietor of the u~ or development approved by thi1 land use revJew, and the current
owner and fu.ture own.en of the property aubject to thia land UH review.

Tim decdalon, uul au,. c~tlona aaoolatad with It. la 8naL It ma., be appealed to the
Orqon Land Uae Board of Appeal1 (LUBA), within 21 daya of the date the decision i• mailed,
u apedfied in the Oregon Revtaed Statute IORS) 197.830. Among other thinp, ORS 197.830
requirea that a petitioner at LUBA muat have submitted written testimony durin& the
comment period for thia land uae review. Contact LUBA at 775 Summer St NE Suite 330,
Salem. OR 97301~1283 or phone 1·503-373· 1265 for ft.u'th.er information.

Exhiblt3
Page8of11
LUBA Record Page 00271
 ER-45
Exhibit3

City of Portland, 0199.~n - ~ureau of Development Services

190D SW Fourth Avenue• Portland. Oregon 97201 f503""823-7300 fwww.portlandoregon.gov/bds

Type Ill D~cl~lon Appeal Ft1e Waiver R~qu~t -~' Organizations

FOR INTAKE, 8TAFF U81! ONLY O Dfl'Htora Approval Latt8r RaqUNted
LU Numb•r: 0 Waiver Approved by Director
DaW1'IIM Rec9lvecl (J waiver DMled
...,... By ......Iver ~proved/Denied:
APPLICANT: Coinplata all HCtlona balDW that apply to the propoul. PINN print l~lblJ.
"J'11 11;, 101 111 is to request J WJivcr I or me lee t ?1:i19cd 1~r ill) .-,ppc.il l o hie an a pt >~~,. a scpar .:it<.: 101111 11' ust IJc completed.
- -

Dewlopm•ntSlla Addru• or Location _ _ _ __ ~ - - - - - - - - - - - - - - -

FU. Numb•r_ __ _ __ _ _ _ _ _ _ _ AppN1Deadlln1D11t1 _ _ _ _ _ _ _ _ __

OrpnlzaUon and Appeal lnfarm.Uon
Orpnlutlon Nam•- - - - - - - - - - - - - - - - - -- - - - - - - - -
P.,.on Authortad by the Orpnlutlon 1D fl• the.Appal _ _ _ __ _ _ _ _ _ _ __ _ __

atrNtAdchN - - - - -- - - - - - - - - - - - - - - - - - - ~ - - -
CftY._ _ _ _ _ _ _ _ __ _ _ _ _ _ .....,___ _ _ _ _ _ ZlpCocfe_ _ __ __
Day PIion• FAX 11111111_ _ __ __ _ _ __
By algnlng 1h11 form, 1IHt o,ganlzatlan canflrm1 lhat
CJ yell a no The mganlzallon IHafled orally Cl' In wrlllng at lhe hearing, and the IHllmany WM dlracad to B
1peclllc eppnwal crllerfan;
0 yes C no The appeal II being made an behalf d the recognized organlmllon, and nat on behalf of an lndl-
vldual; and
IJ yea C no The vote to appeel waa don• In accan:tance with the organlzatlon'1 bylaws.

N1melTltla~------~-------~~~-~-~-------~-~
81gnaturell>ate ~ ~ - - - - ~ - - - - - - - - - - - - ~ ~ ~ ~ - - - - ~ ~
PINN oomplata al of Iha lnfannllllon 19quantd belaw.
See 1'9V9rN aide fDr adclllonal lnformltlon
..... ______ -- on fee waiver requlrementl.
- ,

oat. ~ 1:11•t1ng wnan the ~ to IPJMII the llncl uN .a1Ci1ion -~ tak~~ _;_ ...........
rf'he declllon to lppall WU llladl by I vota of (dHd: one of the folfowlng):
Cl The getW'III mem~ 11 a mNllng d the orgalizdon aa lltild above.
0The board In a meeting -the organization • lflllld abova.
0.
The land
. UH IUbcommltlea In I ~ of the organization M llfad
. - ... -··- ., . .. .. ... . -·· . . . .
lbOVII,
. '
PINN Include ilt lla.t an.·"Mthlii following:
CJ A copy of the mlnutH from the meeting when the vote to appeal waa taken.
C Vote 11t1ulta to appeal• N&anber of YES vot8I to ap~ Number of NO~ to ~ppeal

To NquHt • waiver of an appul fu for a land UN review tau: ·

IJ Thia completed fee waiver request fOrm and any 1upplemental Information neceaary ID quallly for• fee waiver.
The Clly mu,t ....lYe Ille appal fN waiver raqUNt and the •PP• by ,:11 pm on the dHlllne llatad In . . DHIiion In
ordar far h •pal to Ill nlld. 'lb ftle Ill appeal, aublnlt the complelad appeal 1pplloatlon and ... watv.r appllaatlon
at thlt Rae9Phn DHk on 1111 Itta FIDor of 1901 IW 4th Ave, Portland, Oregon, belw9ln 1:00 lffl and~• pm Monday
through Frldar,
1
Ctttof PorOIIJl.CI 019QDft ~ Bu..au dDevelapmenl S~rvk;.as:
LUBA Record Page 00291
 ER-46
Exhibit 3

lnfonnatlon about Type Ill Appeal Fae Waiver Requests for Organizations
The foJlowfng lnformaHon wlU help nelghbDlhDOd, community, bu1lnN1 and lndultrlal auoclatlons and other organlza.
Ilona that are recognized or Uatad In the Office d Neighborhood Involvement Dlractory 1D apply for fee walwn when
appeallng I City land Ul8 '9Vlew dacflllon. The Partland Zoning Code, the Office of Neighborhood Involvement and the
OntgDn llatulas, which regulate pubftc meeting• and public recordl, 111 d•crtbe raqulrernentl tha1 auoclatlons and
o,vanlzatlona mu1t meet when requntlng a fee walvar from the Cly for a land uae appeal.
In order for an appeal to be valid, It must be accompanied by the requlrad appeal fee er a waiver ntqL181t that wa1 a~
pl"DY8d before the appeal deadlne •• ltat8d In the apeclflc land ua declllan (Section 33.730.020 d the Paltland Zoning
Code). The Bureau d Development Servlca8 Dlrecb' may waive a land UN review appeal re. for a recognized organl-
Dlan under certain cln:umltancee (Sectk>n 33,750.050). A recognized organization 11 one that la Hated by the Oftlce of
Neighborhood lnvofvemant (Porttand Zoning Coda Chapfar 33.910).
Becau• the Cly und81'1tand1 lhat the llmelnN far appeals are 1hor1, • wl allow the waiver and appeal to ba aubmlt-
ted at the 1ame time, HOWltWII', Ir the requeat far a fee waiver II denied, the appHI may be Invalid beaauae the daadUne
paaead and the fee did not accompany the appeal. Within 48 houra of receiving the fee waiver reqUNt, the Bureau of
Developm.,t ServlCN Dlreca, or Ille Dtnaalar'I dafegate, wlll notify the organfZatlon'1 conlllct paraon • to wheth• the
raquaat for a fee waiver la approved, or If addlllonal Information II needed to make a dacl1lon on the fN waiver requa1L
The Dll'llclor'• declllon 1D waive an appeal fae la flnal,

Zoning Code Requl..ments

The Portland Zoning Code llatel that the appeal fee may be waived for a recognized organization If all d the followfng
condlOone aN met:
1. The recognized organization ha• anding ID appHI. Thll appllN only to appula of I lype Ill land u,a review,
and mNnl that the nteaglDld organization lallffled, ellher oraly or In Witting, at lhe ln•I evldentlmy hwlng;
2. The appeal II being made e11 lhe behalf d the 19COgnlZ8d osvanlzdon: and
I. The appeal conlalne the llgnalu18 d the ohllbperlon Cl' the olhw paraon alMtartmd by the organization, con-
firming the vote to appeal w11 done In accmdance wltll the organlallon'I bylawa.

Appllcant contact
Whle It II not a requlremant of the Zan~ Code. you ara encouraged ID nally 1ha appllcant or their repraw111ative prtor
to the m..Ung where an appNI d the Clty'a declllon \\ti be dllcullad and voted an. Thll glvel the applaant, ar that
111P181• dalw, an appartunlt)' ID allllnd the meelfng and partlclpala In the dleoulllan.

Where to obtain the ~ II Declalon Appeal FH Waiver Requeata and Appeal Form•
To Ila an appeal, • wpanda fann muat be camplatad and IUbmllllld. Ball the Appeal Fea Waiver Form and Appeal
Form 119 avallabla tam Iha Bureau rA Development Servlcaa, DtMIDpmn Servlcea Cenler, 11t ftoar, 1900 SW Fourth
Avenue, Portland, OR 97201.

I
City ~ Pmtllnd Orag11111- auroau ttt Developmlllt Si!tvleer;;
LUBA Record Paga 00292
APPENDIX
 APPENDIX

1. PCC 33.730.030 Type III Procedure .................................................... App. 1-5

2. Urban Resources, Inc. v. Portland, LUBA 81-136.............................. App. 6-16

 App. 1
Title 33, Planning and Zoning Chapter 33. 730
5/24/18 Quasi-Judicial Procedures

10. Appeal decision final. The appeal decision of the review body Is final and may not be
appealed to another review body within the City.

33.730.030 Type Ill Procedure

A Type Ill procedure requires a public hearing before an assigned review body. Subsections A
through D apply to all sites. If the site Is within the City of Portland, Subsections E through H also
apply. If the site Is In the portion of unincorporated Multnomah County that is subject to City zoning,
Subsection I also applies.

A. Pre-appllcatlon conference. A pre-application conference is required for all requests

processed through a Type Ill procedure. See 33.730.050, Pre-Application Conference.
a. Appllcatfon. The applicant must submit an applicatlon on the appropriate form and
accompanied by the correct fee. The application must contain all Information required by
33. 730.060, Application Requirements, and any additional information required for the
specific type of land use review.
C. Processing time. Upon determining that the appllcatlon Is complete, the Director of BDS
will schedule a public hearing to take place within 51 days. The applicant may extend the
tlmellmit.
D. Notice of a request.

1. Malled notice. At least 20 days before the scheduled hearing, the Director of BDS will
mall a notice of the request to the regional transit agency, Metro, the Oregon
Department of Transportation, the owner, the applicant if different, all property
owners within 400 feet of the site when Inside the Urban Growth Boundary (UGB) and
within 500 feet when outside the UGB, to the recognized organlzation(s) in which the
lot is located, and to all recognized organizations within 1,000 feet of the lot. See
33.730.070 D, Type Ill and Type IV notice of request.
2. Posting notice on the site. The applicant must place a public notice about the request
on the site. The posting must meet the standards of 33.730.080 below.
E. Dedslon by review body If site Is In City of Portland.
1. BDS recommendation. The Director of BDS will prepare a report with
recommendations, and file the report with the review body and make the report
available to the public at least 10 days prior to the hearing. A copy will be mailed to
the applicant and to any recognized organizations whose boundaries Include
the site.

2. Public hearing. The public hearing will be conducted by the assigned review body. It
will be held In accordance with the requirements of 33.730.100, Publlc Hearing
Requirements.

3. Review body decision. The review body may adopt the Director of BDS's report and
recommendation, modify It, or reject It based on information presented at the hearing
and In the record.
a. Hearings Officer.

730-9
 App. 2
Chapter 33.730 Title 33, Planning and Zoning
Quasi·Judlclal Procedures 5/24/18

(1) Generally. The Hearings Officer will make a written decision in the form of a
report cind mail notice of the de<;:lslon within 17 days oftne close of
the record;

(2) Comprehensive Plan Map Amendments. For Comprehensive Plan Map

Amendments and land use reviews processed concurrently with
Comprehensive Plan Map Amendments, the Hearings Officer will make a
written recommendation in the form of a report to City Council and mail
notice of the recommendation within 30 days of the close of the record.
b. Other review bodies. Other review bodies will make all deliberations and
decisions at the hearing.
4. Amended decision report. If the review body modifies or rejects the Director of BDS's
report, an amended report with findings supporting the decision will be prepared. For
review bodies other than the Hearings Officer, the Director of BOS will prepare the
amended decision report and mail notice of the decision within 17 days of the close of
the record. The report must comply with 33.730.090, Reports and Record Keeping.
S. Malled notice of decision (pending appeal). When the Hearings Officer is the review
body, the Hearings Officer will mall notice of the decision. For other review bodies, the
Director of BDS will mail notice of the decision. Within 17 days of the close of the
record, or within 30 days for Comprehensive Plan Map Amendments and land use
reviews processed concurrently with Comprehensive Plan Map Amendments, the
Hearings Officer or Director of BOS will mall notice of the review body's decision
(pending appeal) to the owner, the applicant if different, and all recognized
organizations or persons who responded In writing to the notice of the request,
testified at the hearing, or requested notice of the decision. In the case of multiple
signatures on a letter or petition, the person who submitted the letter or petition or
the first signature on the petition will receive the notice. See 33.730.070.G, Notice of
Type II, Type llx or Type Ill decision (pending appeal).

F. Ablllty to appeal. The review body's decision is final unless appealed. The decision may be
appealed by the applicant, the owner, and those who have testified orally or in writing at
the hearing, provided that the testimony was directed to a specific approval criterion. The
appeal must be submitted to the Director of BOS within 14 days of the day the notice of
decision is malled. The review body for the appeal will be the City Council.
G. When no appeal Is flied. If no one appeals the decision, the decision is final and effective
on the day after the last day to appeal.

H. When an appeal Is flied. Appeals must comply with this subsection.

1. Content of the appeal. The appeal must be submitted on forms provided by the
Director of BOS. All information requested on the form must be submitted in order for
the appeal form to be accepted. The appeal request must Include:

730-10
 App. 3
Title 33, Plannins and Zoning Chapter 33.730
5/24/18 Quasi-Judlcial Procedures

• The file number and land use review(s) appealed;

• The appellant's name, address, slsnature, phone number, and relationship to the
land use action;
• A statement of which sections of the Zoning Code or which approval criteria the
decision violates; and
• The required fee.

2. Malled notice of the appeal hearing. The Director of BDS wlll mall a copy of the appeal
within 3 working days of its receipt to the applicant, unless the applicant Is also the
appellant, and the owner. Within 5 working days of the receipt of the appeal, the
Director of BOS will mail a notice of the appeal hearing to the owner, the applicant if
different, the review body, and all persons and recognized organizations that received
the notice of the decision. See 33. 730.070.H, Notice of a Type II, Type llx, or Type Ill
appeal hearing. No notice of the appeal hearing is required to be posted on the site.

3. Scheduling of hearing. The City Auditor will schedule a public hearing to take place at
least 21 days from the mailing of the notice of appeal.

4. Submit report to City Council. The Director of BOS wlll forward the appeal as filed, the
review body's decision report, and a transcript if requested and paid for, to City
Council at least 7 days prior to the date of the hearing.

5. Appeal hearing. Appeal hearinss must comply with the provisions of 33. 730.100,
Public Hearing Requirements, and 33.730.110, Ex Parte Contact. Appeals heard by City
Council may be heard "on the record" and must also conform to any rules of
procedure adopted by Council for their use. The Director of BOS will represent the
review body in appeals heard by City Council.

6. Appeal decision and findings.

a. The City Council may adopt the review body's decision report, modify it, or reject
It based on information presented at the hearlns and in the record. If City Councll
modifies or rejects the decision report, an amended report with flndlnss
supporting the decision must be prepared as provided in Subparagraph b. below.
The report must comply with 33.730.090, Reports and Record Keeping.

b. The Councll may make a tentative action and direct that proposed findings and a
decision be prepared. If the prevailing party is represented by a land use
professional or attorney, the prevailing party must provide findings and
conclusions to support the Council's decision. If the prevailing party is not
represented by a planning professional or attorney, the Director of BDS will
provide findings and conclusions to support the Councll's decision. Prior to final
Council adoption, all findlnss must be reviewed and approved by the City
Attorney. The findings and decision must be adopted by Councll vote. An
additional public hearing Is not required if the vote is at a subsequent publlc
meeting. City Council decisions are In the form of an Order of the Council except
when an ordinance Is required due to the type of land use request

730-11
 App. 4
Chapter 33.730 Title 33, Planning and Zoning
Quasi-Judlclal Procedures 5/24/18

(Comprehensive Plan Map amendments or Statewide Planning Goal exceptions).

In these instances, the ordinance serves in lieu of the Order of Council.

7. Notice of the final decision. Within 5 days of final Council action, the City Auditor wlll
mall the notice of final decision to the applicant, owner, and to any recognized
organizations or persons who responded In writing to the appeal notice, testified at
the hearing, or requested notice of the decision. In the case of multiple signatures on a
letter or petition, the person who submitted the letter or petition or the first signature
on the petition will receive the notice. See 33.730.070 I,
Notice of final decision.
8. Date that decision Is flnal and effective. The decision of City Council is final and
effective on the day notice of decision Is mailed by the City Auditor.

9. Appeal decision final. The appeal decision of City Council is final and may not be
appealed to another review body in the City.

I. Decision by review body If site Is not In City of Portland.

1. BDS recommendation. The Director of BDS wlll prepare a report with
recommendations, and file the report with the review body and make the report
avallable to the public at least 10 days prior to the hearing. A copy will be mailed to
the owner, the applicant if different and to any recognized organizations whose
boundaries include the site.
2. Public hearing. The public hearing wlll be conducted by the assigned review body. It
will be held In accordance with the requirements of 33.730.100, Public
Hearing Requirements.
3. Review body decision. The review body may adopt the Director of BDS's report and
recommendation, modify it, or reject It based on information presented at the hearing
and In the record.
a. Hearings Officer.

(1) Generally. The Hearings Officer will make a written decision in the form of a
report and mail notice of the decision within 17 days of the close of the
record;

(2) Comprehensive Plan Map Amendments. For Comprehensive Plan Map

Amendments and land use reviews processed concurrently with
Comprehensive Plan Map Amendments, the Hearings Officer will make a
written recommendation In the form of a report to City Council and mail
notice of the recommendation within 30 days ofthe close of the record.
b. Other review bodies. Other review bodies wlll make all deliberations and
decisions at the hearing.

4. Amended decision report. If the review body modifies or rejects the Director of BDS's
report, an amended report with findings supporting the decision will be prepared. For
review bodies other than the Hearings Officer, the Director of BOS will prepare the

730-12
 App. 5
Title 33, Planning and Zoning Chapter 33.730
5/24/18 Quasi-Judicial Procedures

amended decision report and mail notice of the decision within 17 days of the close of
the record. The report must comply with 33.730.090, Reports and Record Keeping.

S. Notice of flnal decision. When the Hearings Officer is the review body, the Hearings
Officer will mail notice of the decision. For other review bodies, the Director of BDS
will mall notice of the decision. Within 17 days of the close of the record, or within 30
days for Comprehensive Plan Map Amendments and land use reviews processed
concurrently with Comprehensive Plan Map Amendments, the Hearings Officer or
Director of BDS will mail notice of the review body's flnal decision to the applicant,
owner, and to any recognized organizations or persons who commented in writing,
testified at the hearing, or requested notice of the decision. In the case of multiple
signatures on a letter or petition, the person who submitted the letter or petition or
the first signature on the petition will receive the notice. See 33.730.070.1, Notice of
final decision.

6. Effective date of decision. The review body's decision takes effect on the day the
notice is mailed.

7. Decision final. The decision of the review body Is final and may not be appealed to
another review body within the City.

33.730.031 Type IV Procedure

A. Pre-appllcatlon conference. A pre-application conference is required for all requests
processed through a Type IV procedure. See 33.730.050, Pre-Application Conference.
8. Appllcatlon. The applicant must submit an application on the appropriate form and
accompanied by the correct fee. The application must contain all information required by
33.730.060, Application Requirements, and any additional information required for the
specific type of land use review.

C. Processlns time. Upon determining that the application Is complete, the Director of BOS
will schedule a public hearing to take place within 71 days. The applicant may extend the
time llmlt.
D. Notice of a request.

1. Malled notice. At least 20 days before the scheduled hearing, the Director of BOS will
mail a notice of the request to the regional transit agency, Metro, the Oregon
Department of Transportation, the owner, the applicant if different, all property
owners within 400 feet of the site when inside the Urban Growth Boundary (UGB) and
within 500 feet when outside the UGB, to the recognized organization(s) In which the
lot Is located, and to all recognized organizations within 1,000 feet of the lot. See
33. 730.070.D, Type III and IV notice of request.
2. Posting notice on the site. The applicant must place a public notice about the request
on the site. The posting must meet the standards of 33.730.080, below.
E. Advice from Historic Landmarks Commission. BOS staff will ask the Historic Landmarks
Commission to review the proposal at a publlc meeting where members of the public may
comment. The Historic Landmarks Commission may offer comments or suggestions, in the
form of a letter or testimony, to the review body. Such comments or sussestlons are

730-13
 App. 6

LAND USE
JOARD OF APPEALS
I BBPORB THB LAND USB BOARD OP APPEAifn Z6 12 57 PM '8Z
2 OP THB STA.TB OP ORBOOH
J URBAN RBSOURCBS, INC., )
)
4 Petitioner, ) LUBA No. 81-136
)
s y. )
) PINAL OPINION
6 CITY OP PORTLAND, ) MID ORDBR
)
7 Respondent, )

8 Appeal from City of Portland,

9 Roger A. Nelson, Portland, filed the Petition for Review
and argued the cause on behalf of Petitioners.
10
. ~ Kathryn S, Beaumont, Portland, filed the brief and argued
11 the cauaa on behalf of Respondent City of Portland.
12 Carol J, Buehrena, Portland, filed the brief and argued the
cauae on behalf of Respondent Southwest Hilla Residential
13 League.
14 BAGG, Referee, RBYHOLDS, Referee, cox, Referee,
pa~tiaipated in this 4ecia1on,
15

16 REMAHDBD 4/26/82·
17
You are entitled to judicial review of this Order,
18 Judicial review la governed by the provisions of Oregon Laws
1979, ch 772, aec 6(a),
19 ~

20
21
22
2J
24
25
26
Page 1
 App. 7

J BAGG, Referee.

2 NA.TURI OP TBB DICISIOS

J Petitioner appeal• denial of an application to conatruat a

4 13 unit planned unit development within the City of Portland,

5 FACTS

6 Petitioner filed an application for a conditional use to

7 allow planned unit development of 13 unita on a 3.05 acre

8 parcel. 'l'he parael i• zoned a-10, a low density single-family

9 residential zone, and the zoning allows for and ia presently

10 platted to aaaomaoc!ate 8 aingla-faaily detached dwellings.
Jl Grant of a planned unit development permit would allow the
12 development as envisioned by petitioner.
13 'l'he application waa heard by the city•• hearing• officer on
14 June 1, 1981. 'l'he hearing• officer approved the conditional
15 . uae permit in a written order ·accompanied by finding• issued on
16 June 17, 1981. That deaiaion waa r~viewad and affirmed by the
17 aity planning commiaalon ln a 0
Notlficatlon.of Planning
18 Coamlealon Action• laeue4 on September 10, 1981.
19 ~ ~ha approval~·• appealed by the Southwest Billa
20 &eighborhood Aaaociation (SWHRL) and Mr. Jay Rosacker. 'l'he
21 a~ty council conducted a baa~ing on the matter on ijovember 18,
22 1981, The hearing was continue4·to R~vember ~9 at whlah time a
2J llOtion by Councilmember Schwab.to deny the planned unit
'
• 24 development paaaed by a 3 to 1 margin. 'l'he motion made no
25 ·reference to the finding• of the hearings officer.
26 Councilaember Schwab•a motion was
Page 2
 App. 8

I "baaed on the fact they have not complied with, I

mean, they didn't meet the apealficationa of 33.106
2 and baaed on the traffia and some of the other items
we dlacuaaed yesterday.• Record at 12.
J
4 A letter waa written by George Yerkovich, auditor of the

5 City of Portland, to the various parties to the appeal atating1

6 'l'he City Council Thursday, November 19, 1981,
11

denied approval for conditional Use Application of

7 Urban Raaourcea, Inc., to construct a 13-unit PUD on
lot• 1 through 8, Wlnterwood, located on the east aide
8 of s.w. rairmont Blvd.• Record at 3.
9 Additionally, there la what we understand to be a cover sheet
10 aignad by the auditor which baara the tally of the votes of the
u · city council and bears a atamp stating "APPBAL GRAS'l'BD." 'l'he

12 record does not reveal any written order or any written

lJ findings to support the city'a action.

14 ASSIGRMBNTS OP BRROR
IS Petitioner makea the following asaignmenta of error1
16 1. The City Counail erred by adopting a~ Order which
11

waa not aupported by relevant factual evi~anca and

17 whiah was inaonaiatent with the planning and Boning
provisions of the Portland Municipal Code."
18
•2. The City Counail erred by adopting an Order which
19 - was not accompanied by a statement setting forth its
findings and the reaaona for the declaion it reached."
20
21 Pe~ltloner asks that LUBA reverse the decision of the city
22 counail. We understand petitioner to believe reversal of the
2J city council order will work to reinstate the order of the
24 hearings officer aa reviewed and affirmed by the planning
25 commiaa1on.
11
26 Respondent SWHRL states that lt la aatiafiad with the
Page 3
 App. 9
: '' ..·,

1 proceedings below and the ruling adopted by the City Council,n

11

2 Respondent SWHRL asks that if the case ia remanded, it should

3 be for the limited purpose of allowing the City to properly

4 draft and enter its find.Inga."

5 Respondent City of Portland argues that LUBA baa no

6 juriadict1Qn to hear the appeal, The city argues that a

7 deci,ion la final for the purposes of review under 1979 Or

8 Laws, oh 772, aeo 4(1), (2) as amended by Or Law• 1981, ah 748,

9 when it is reduced to writing and signed by a member of the

10 dealeion-matlng body. 1 'l'he aity aitea 'l'hede v Polk County, 1

11 ·or LUBA 339, 344 (1980) in support of thia proposition. 'l'ba
12 aity argues that a local governing body's decision must be
IJ included ln a written order which contain• findings explaining
14 the governing body'a aation, 1000 Pri enda of Oregon V
15 . Clackamas Count~, 3 Or LUBA 203, 207~208 (1981), 'l'be city

16 states that the council's action includes

. no document
. entitled

17 order or fin4lngs and ia therefor~ inaufflciant to oonatltute a

18 lan4 use decision.

19 - Aa an alternative, the city ar9uea that if· the Board finds

20 that it doea have juriadictlon to hear the appe~l, the

21 appropriate response would ba to reman~ the matter to the city

22 for further proaee41nga. 'l'ha further proceedings, presumably,
23 would include the city's findings leading it to conclude that
24 the planned unit 4eYelopment aho~ld be dia~llowed. 'l'ha city ls
25 particularly anxious to have LUBA direct the city aa to whether
26 a new eYidentiary hearing on the land uae request la required,
Page 4
 App. 10

1 or whether the city "may simply ratify its prior deaiaion and
2 adopt findings and an order to support that deaiaion."
3 In reply to the city, Reapondent SWBRL expresses concern
4 that there be no reopening of any proceedings before the city
S council. ·Respondent SWHRL states the city council laaka the
6 power to aat aaida its daaialon in the absence of expressed
7 statutory authority to do ao. Respondent SWBRL claims that the
8 prinaiple of!!! j udiaata is applicable. "Any other result
9 would allow the developer but not the neighborhood the
10 opportunity to a start anew if it didn't get what it wanted."
11 In other words, Respondent SWHRL believes there baa been a
12 complete ajudication of the matter, and reopening the aaaa
13 other than for the very limited purpose of supplying findinga
14 of faot la impermissible.
15 In 1000 Prienda of Oregon v Clackamas Countx , 3 or LUBA 203
16 (1981), we held that a •deciaion is not final for the purpose
17 of counting days to appeal until it is in writing and
18 accompanied by the necessary findlnga.• 2 We also held that
19 ~ the •action" referred to in ORS 215.442, and which we
20 uncteratood to be aynonyaoua with "land \188 deai·aion. N i a not
21 co~lete without a written order accompanied by findings.
22 "Without written findings accompanying the
declaion, the petitioners can make -no effective appeal
23 or, indeed, axarclae their judgment a• to whether to
make an appeal. Purther, a ·farty 1·a not 'aggrieved•
24 withln·the meaning of 215.422 until he or she ia given
the written decision. The time tQ appeal t~en, must
2S be calculated from the time the written deciaion is
available to petltlonera.11
1000 l'rienda, 3 Or LUBA at
26 210.
Page 5
 App. 11

J We baaed the holding on our analysis of statewide planning Goal

2 2, which we understood to require finding•, and on ORS
J 215.416(6) requiring a "brief statement• of the reasons for a

4 land use dealaion. 3 Our order was affirmed in Bryant v.

5 Clackamas.County , sa Or App 422, __. P2d ___ (1982). 'l'he Court
6 of Appeals held a decision la not final for appeal purposes
7 untii the notice required in 215.476(7) ia given to all parties
8 to tha proceeding. The Court declined to decide the issue of
9 whether ORS 215.4la(6) required thllt the findings of a hearing•
10 officer be reduced to writing before counting the days to
11 appeal.
12 In Windward Condominium Association v City of Gearhard,
IJ Or LUBA~ (LUBA Ho. 81-124, March 15, 1982), we remanded a
14 decision that was memorialize4 only ln a latter from the city
15 administrator to the petitioner'• attorney. There were no
16 supporting findings, and we aonclud~d that the ~etter waa •not
17 a final action of the city counall. 11 In a -~ootnote, we stated
18 that 11
the proper diapoaltion of this appeal should be
19 ~ diamiaaal, rather. than remand, becauae without findlnga adopted
20 by the city council there ia no final deciaion.• The case waa
21 remanded 1iaply becauae the parties did not raise the iaaue of
22 our jurisdiction aa baa been raised hare.
23 Our holdings are not entirely conaiatent on the iasue of
24 what form a decision must take in order to be "final" for
25 ·appeal purpoaea. In Mc::Cry·st.al v Polk County , l or LUBA 142
26 (1980) and Dupont v. Jefferson County, 1 Or LUBA 136, aff•d,
Page 6
 App. 12

1 Hoffman v. Dupont,~ Or LUBA~' 49 or App 699, 621 P2d 63

2 (1981), we held that findings were naceasary for our review,

J and failure to adopt findings waa grounds for remand. We made

4 no reference to jurisdiction or poaaible diamia~al of the cases

5 for lack of an appealable order. We believe clarification of

6 thia iaaue ia needed.
7 The 1000 rrienda v Claakamaa county aaae probably went too

8 far to the extent it held that no ~ppaalable •daciia1on" axiata

9 without a written order accompanied by written findings. A

10 distinction axiata between no land uae decision taken and a

11 ' land uae deci1ion made that doea not me•t legal requirements.

12 'l'he former oircumatance veata no juriadlation in LUBA. the

13 latter circumatanaa veata jurisdiction and may result in

14 reversal or remand. In the pr~aent caae, the city council did

IS move and vote to "grant• an appeal of a hearing• offiaer and
16 planning aomaiaaion deciaion allowin~ a planned unit
17 development. That decialon appear, in the minutes of the city
18 council meeting, and the motion making the deolaion included a
19 ~ atateaent of reaaona for the decision. See the motion of
20 Commiaaioner Schwab. supra. 'l'he decision waa memorialized in a
21 letter by the city auditor and a cover sheet or filing document
22 also endorsed by the city auditor. We are not told whether
23 there la authority in city ordinance or charter requiring the
24 city auditor to aign 4ocumenta for the clty council, but thia
25 practice has not bean challenged aa in violation of city
26 charter or code provisions. We can only preauae that the city
Page 7
 . --
-·-
App. 13
··:· : . \ .

l auditor was acting within hia delegated authority, 3 MaQuillin,

2 Municipal CorEoration, Sac. 12.126 (3d ad 1973). We recognize

l that our rule define• a final decision or determination aa ona
4 that has been reduced to writing and which •baara the nece•aary
5 signature• of the governing bo4y.u However, we recognize that
6 the local juriediatlon may delegate the aignatura duty (if any)
7 to whomever it wish•••
8 Becauae of the cover sheet aigned by the auditor, the
9 motion and vote of the city council and the fact that the city
10 contemplates no further act to coaplete it• consideration of
11 · the petitioner•• application, we believe the city made a final
12 deci1ion within the aeanlng of 1981 or Laws, ch 748. However,
13 the city'• ezarciae waa legally flawed because it lacked
14 adequate written findings,. 4 Rather than atate that we have
lS . no·jurisdiction to review the attempted decision, it la our
16 view that we do have juriadiotion to.consider th• decision and
17 whether it met applicable legal standards. 'It la clear from
18 the record in thla case that the decl•lon did not meet
19 ~ applicable legal atandarda. The city made no finding• of fact.
20 Petitioner Urban Raaouroea, Ina. want• us to reverse the
21 deciaion. We disagree and believe a reaan4 as waa used in
22 Hoffman v Dupont,·aupra, to be the better aour••· In our view,
2l a reversal la warranted where the city made an error of law and
24 not where the city aiaply failed to complete !ta
25 reaponalbilitiea under the law. Sea Bill Y Union County Court,
26 42 or App ~83, 601 P2d 905 (1979), couglln v Mc Blroy , 42 Conn
Page 8
 App. 14

l 444, 444A, 743, 744 (1899), 1'reaand 11 and "reverse" in Blacks

2 Law Dictionary (Rev 4th Bd, 1968). Also, we decline to adopt

J the view of Respondent SWHRL and limit the city's duty on
4. remand to the entry of findings. Laudahl v. Polk Countr , 2 OR
5 LUBA 149, 150 (1980), In Bellman v City of Rosebu rg , 39 or App
6 71, 591 P2d 390 (1979), the Court noted tha~ there waa no order
7 made.oontemporaneoualy with or after fact finding, The
8 finding• that were entered in that case did not "in any express
9 or implied way suggest deliberate ratification of an earlier
10 tentative deaiaion.• Beilman, 39 Or App at 75, In the present
11 · caaa, were the city to aimply adopt findings, it would
12 conceivably break the rule announced in Beilman that the
JJ findings preced~ the decision, That is, the findings or the
14 basis in fact for the deoialon must come first. Therefore, we
15 believe on remand the city will be required to make findings of
16 fact and from those findings of fact make a decision. It is
17 conceivable that the city might reach a different dacia!on once
18 it carefully examines the facts in the record, 5
19 ., Wa do not subscribe to the view of Respondent SWBRL that
20 the city council should be aatopped to rehear tha conditional
21 ua·e request after remand from thi~ Board. Presumably, we aould
22 limit the iaauea on remand, but we decline to do so, Sae Lemke
v Lane County , 3 Or LUBA 11 (1981). Sea 3 Anderson, American
24 Law of Zoning , Section 20.52 (2d ed, 1977).
25 Thia matter ls remanded to the City of Portland for
26 proceedings consistent with this opinion,
Page 9
 App. 15

POOTHO'l'BS
J
2
J l
N•Land uae daciaion• meanat
4
"(a) A final decision or determination made by a
5
local government or special district that
concerns the adoption, amendment or
6
applicaton of1

7
11
(A) 'l'ha goals,

8
11
(8) A comprehensive plan provision, or

9
•(c) A land use regulation, or

10 "(b) A final deoiaion or determination of a state

agency other tha~ the cOJ111iaaion with
11 respect to which the agency le required to
apply the goals.• ORS 197.015(10).
12 Thia definition was part of Oregon Lawa 1979, ch 772 and
1J now appears in ORS Ch 197 aa cited. See footnote in
Wyatt v. Antelope , _ Or LUBA (LUBA 1110. 82-024, 1982).
14
LUBA Rules 3(c) states,
15
••rinal deaiaion or determination• aeana a decision or
16 determination which baa been reduced to writJ.ng and
which bear• the naceaaary signatures of t~e governing
17 body.•

18
2
19 " 'l'he case was about timalineaa of filing a~ appeal.

20
3
21 Sae ORS 227.173 to 227.180. ~he atatutea control city
planning and zo~ing hearings and ravlaw and mirror. the
22 provisions in ORS chapter 215 upon which our opinion was
baaed. 'l'he appeal at ieaua was from a decision of a hearing•
23 officer to.the Board of Commiaaionera. We view the iaaue of
the necessary prarequiaite for finality of a 4aoiaion to be the
24 eame whether a hearings o!ficar or .a Board of Co1111iasionara 1
deaiaion la at iaaue.
ZS
26
Fage 10
 App. 16

I
4
2 It i• important to note that the city does not argue that
it baa not completed ita oonaideration of the matter. See
3 Betti• v. Roaeburg , 1 Or LUBA 174 (1980).

5 Preaumably, the city could take additional evidence if it

needed to in order to provide itee~f with a sufficient basis in
6 fact from which to make a decision. Sae Weitelaon v. Salem, 2
or LUBA 168 (1981).
7
We recogniae that the motion of Councilmember Schwab
8 include• a reason for the decision. We do not know whether her
announced reason baa a aufficient baaia in fact in the record.
9 In any caae, we do not decide whether the reasons stated in
Councilmember Schwab's motion would be sufficient to support
10 the decision.

11

12
JJ

14
15
16

17
18
19 ~

20
Zl
22
23
24

ZS
26
Page 11
 CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH
AND TYPE SIZE REQUIREMENTS
I certify that (1) this brief complies with the word-count limitation in ORAP

5.05(2)(b)(ii)(A), as 10,000 words pursuant to ORAP 5.05(3)(a); and (2) the word-

count of this brief (as described in ORAP 5.05(2)(a)) is 9,895 words.

I certify that the size of the type in this brief is not smaller than 14 point for

both the text of the brief and footnotes as required by ORAP 5.05(4)(f).

s/ Christopher P. Koback
Christopher P. Koback, OSB # 913408
Of Attorneys for Petitioner Riverview
 CERTIFICATE OF FILING AND SERVICE

I hereby certify that I filed the foregoing PETITIONER’S OPENING

BRIEF AND EXCERPT OF RECORD causing it to be electronically filed with
the Appellate Court Administrator on February 12, 2019, through the appellate
eFiling system.
I further certify that, through the use of the electronic service function of
the appellate eFiling system on February 12, 2019, I served the foregoing
document on Lauren King and Carrie Richter.

s/ Christopher P. Koback
Christopher P. Koback, OSB # 913408
Of Attorneys for Petitioner