ApAhko <br />WCity Attorney's Office <br />Date: July 24, 2015 <br />To: Eugene Planning Commission <br />From: Anne C. Davies <br />Subject: Oakleigh Co-Housing PUD (PDT 13-1) <br />Introduction <br />Memorandum <br />The Agenda Item Summary (AIS), dated July 21, 2015, provides a summary of the <br />procedural history of this case, which will not be repeated in detail here. For purposes of these <br />remand proceedings, however, it is important to remember that the Planning Commission already <br />reviewed this case when it made its initial decision on December 16, 2013. As discussed below, <br />Mr. Trautman's testimony during the remand public hearing will be limited to the record that <br />was prepared before the Hearings Official, which is the case in any similar appeal from a <br />Hearings Official decision. <br />II. Timeframe to Take Final Action <br />State statute provides that a city must take final action on a case remanded by LUBA <br />within 90 days. That 90-day period does not begin to run until the applicant requests in writing <br />that the city proceed with the application on remand. In this case, the applicant made that written <br />request on July 13, 2015. Accordingly, unless extended by the applicant, the City must take final <br />action on this remand by October 12, 2015. <br />III. Public Hearing on Remand on Procedural Notification Error <br />With regard to the City's alleged procedural error in failing to notify Simon Trautman, <br />LUBA determined that the City erred in failing to provide Simon Trautman notice of the <br />Hearings Official decision and notice of the Planning Commission hearing. However, LUBA <br />did not provide much in the way of guidance as to the appropriate process for the City to take on <br />remand. It concluded simply as follows: <br />"ORS 197.835(9)(a)(B) authorizes LUBA to remand for procedural errors that <br />prejudice the substantial rights of the petitioner. We agree with Trautman that the <br />city's failure to provide Trautman with notice of the hearings officer's decision <br />and with notice of the appeal hearing prejudiced his right to participate in the <br />planning commission hearing on the appeal of that hearings officer's decision. <br />See Muller v. Polk County, 16 Or LUBA 771, 775 (1988) ("[u]nder ORS <br />197.835[(9)(a)(B)] the `substantial rights' of parties that may be prejudiced by <br />failure to observe applicable procedures are the rights to an adequate opportunity <br />City of Eugene • 125 E. 8th Ave. • Eugene, OR 97401 • 541-682-8447 • 541-682-5414 Fax <br />www.eugene-or.gov <br />(00173489;1) <br />