Staff Report on Appeal - Laserfiche WebLink

Staff Report on Appeal MAJ Eugene Polk Street (TIA 21-2 and ARA 21-14) Page 5 of 18 He states in part, that ownership is irrelevant to the approval criteria, and the updated ownership was mentioned in the written narrative submitted prior to December 16, 2021, so the updated application form contained no new evidence supporting the application. The appellant also misunderstands the procedural rules applicable to local land use proceedings, and their reliance on “Lovinger v Eugene” is off point. The correct citation of “Lovinger v Eugene” is Trautman v. City of Eugene, 280 Or. App. 752, 383 P.3d 420 (2016). In that case, the court held that once a record is closed, the local government must give an individualized notice to the participants if the local government decides to reopen the record. The Trautman/Lovinger case says nothing about the local government’s responsibilities before the record is closed. Prior to closing the record, any party can submit additional information at any time. The appellant does not allege any defect in the public notice of the application or the appellant’s right to comment on the application. Rather, the appellant alleges a defect in the City’s “completeness” review, and they challenge the applicant’s ability to modify the project and submit additional information in response to the appellant’s comments. The “completeness” review does not bestow substantive rights on the appellant, as LUBA held in Blu Dutch LLC v. Jackson County. The City’s “completeness” review is governed by ORS 227.178. Under subsection (1) of that statute, the “completeness” review determines when the 120-day clock starts ticking. Under subsection (3), the “completeness” review determines when an application is vested as to future code changes. Subsection (2) of ORS 227.178 authorizes the applicant to demand the City “deem” the application to be complete despite the applicant’s refusal to provide some or all of the information the City found to be missing. Thus, even in cases where information is missing, that does not prevent the City from reviewing the application, or even approving it if the information needed to demonstrate compliance with the approval criteria is subsequently provided, as LUBA held in Blu Dutch. There is no provision in ORS 227.178 (or any other statute) providing any specific rights to the appellant to demand that the application be made complete before the City conducts its review of the application. In any event, this hearing is a complete cure to any alleged defects the appellant asserts happened during the staff review of the application. LUBA has long held that procedural errors before a lower-level local decision maker provide no basis for reversal or remand at LUBA where the errors are cured by de novo review by a higher-level local decision maker. Rouse v. Tillamook County, 34 Or LUBA 530 (1998). Appeal Issue 2: Applicable development standards were ignored Summary of Appellant’s Argument The second appeal issue raised is that the TIA requires a complete depiction of the structures on a site plan that proposes a footprint, access, and alternative modes of travel to determine safety. Specifically, the appellant is concerned with the eastern façade of the proposed convenience store