From: Dan Huff
Sent: Mon May 15 15:28:08 2017
To: Sadie Cramer; Gerald Fisher
Subject: FW: Findings attached
Importance: Normal
Attachments: 00398048.docx; These are not the signed findings but the language is what they signed. From: David Doughman [mailto:David@gov-law.com] Sent: Thursday, July 17, 2014 2:12 PM To: Dan Huff (dhuff@cityofmolalla.com) <dhuff@cityofmolalla.com> Cc: Chad Jacobs <Chad@gov-law.com> Subject: Findings attached Hi Dan: Attached please find my edits to the findings. Within the document I have some comments on which I elaborate below. 1. Legislative v. QJ. The findings are a little muddled on this point. You state in Section C that a quasi-judicial process was required. While I agree it was appropriate to utilize the protections the QJ process affords participants, a city can certainly enact plan amendments and zone changes legislatively, and I believe LUBA would find that we did so in this instance. Whether a process is quasi-judicial or legislative in nature does not depend per se on the resulting decision. The Oregon Supreme Court devised a balancing test in Strawberry Hills 4 Wheelers v. Benton County Bd. of Commissioners, 287 Or. 591, 601 P.2d 769 (1979). First, quasi-judicial proceedings are “bound to result in a decision.” Id. at 775. Second, they are “bound to apply preexisting criteria to concrete facts.” Id. Third, they are “directed at a closely circumscribed factual situation or a relatively small number of persons.” Id. The reason I think a court would determine we made a legislative decision is that the process was not bound to result in a decision (unlike an application initiated by a property owner) and the decision affects a large number of properties across much of the city. I point this out not for academic purposes, but just to be sure we are mindful of what it means if we got an appeal. Under relevant law, in a quasi-judicial setting an individual must raise all issues at the local level that could form the basis of an appeal to LUBA. AKA the “raise it or waive it” rule. However, this rule only applies to QJ decisions. A party appealing a legislative decision to LUBA can raise any issue it wants, even if it was not raised below. This is why I am recommending some additional changes to the findings – in the event someone were to appeal and say raise a TPR challenge, we could not assert that LUBA should dismiss the challenge because it was not raised before the city. We would be left to defend it on the merits. 2. Party Status. I do not think anything necessarily needs to be changed here but I did want to be sure we were on the same page as to what this means. In talking with Heather, she mentioned her understanding that only those with “party status” are able to appeal the annexations further. Because any appeal would go to LUBA, this is not accurate. One of the biggest frustrations for local government lawyers is how damn easy it to file a LUBA appeal. No showing of injury or practical effect is required. All one needs to do is participate in the proceedings below, file a notice of intent to appeal within 21 days and pay about $350. DLCD establishes a process for determining the status of parties for cases subject to its jurisdiction; however, even that process would permit someone with no “skin in the game” to participate. 3. Goal 9. Do we have an EOA that would lend any support to the conversion of some of the county RRFF-5 land to commercial/industrial designations? I do not think the decision is very vulnerable under Goal 9/OAR Chapter 660, division 9 but I think this could be beefed up to our advantage. I’ve added some findings here regardless. 4. Goal 12/TPR. I think this is our biggest vulnerability if we draw an appeal. Of course, someone would have to have a good understanding of the intricacies of Oregon land use planning to realize this, and no one I heard from last week would appear to fall into that category. Nevertheless, the findings do not contain the level of specificity needed to withstand a challenge under OAR 660-012-0060, which effectively compels local governments to take very specific action to show that amendments (in this case, the plan and zone changes) will not “significantly affect” transportation facilities. It is fair to say, especially for those commercial and industrial parcels, that the switch from county to city zoning increases the development potential of the properties. This, in turn, will likely lead to an increase in traffic as well. In a perfect world, we would have an analysis for each property to evaluate whether the switch will significantly affect transportation facilities by measuring the traffic that would be generated from the most traffic-intense use in each city zone against our TSP and the assumptions contained in it. I have added some findings to this effect in the Goal 12 section, though I do not believe they would carry the day if we were challenged on this. May throw doubt in a would-be appellant’s mind though. 5. Timing of connections. The City should eventually pass an ordinance that addresses the various timing issues for connections and the costs associated with them. The ordinance should include the requirement to connect for a failing well or septic. Let me know if you have any questions. Don’t know if you were wanting a lawyer for next Wednesday but I will be out of town. You do not need to have another hearing, so it should be the council simply adopting the ordinances. I’ve copied Chad here and, since I kind of like the guy (even though he is from Ohio), I can speak with him while I am away if you decide you do want him to attend. Best, David David F. Doughman Beery Elsner & Hammond LLP 1750 SW Harbor Way, Suite 380 Portland, OR 97201 t (503) 226 7191 | f (503) 226 2348 This is intended for addressees only. It may contain legally privileged, confidential or exempt information. If you are not the intended addressee, any disclosure, copying, distribution, or other use of this e-mail is prohibited. Please contact me immediately by return e-mail and delete the message and any attachments. P Please consider the environment before printing this email. PLEASE NOTE: I will be out of the office beginning the afternoon of Friday July 18 and will return to the office Monday July 28. I will have limited access to email during that time.