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Oral Argument 2025-009/010/011 Sattler et al v. City of Beaverton
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=HtCEGp3_GMQ). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Hello. This is the time set for or oral argument in luba numbers 2025- 09, 010, and 011. Satler at all versus the city of Beaverton. I'm board chairsio. Board members Wilson and Basham are also present. Uh, this hearing is being recorded and livereamed. Please mute your audio when you're not speaking, which will help with the recording quality. I'm not aware of any pending motions in these matters. Do the parties have anything to bring to our attention that's pending? Nothing from the parties. Okay. Thank you. Oral argument is a total of 30 minutes. And petitioners, you have 15 minutes to share and may reserve up to five minutes for rebuttal. Have you We have Madam Chair, I'll actually end up speaking on behalf of the petitioners and we're going to reserve five minutes for rebuttal, please. >> Okay. Thank you. Um, just to note, the clock on the screen is just for your reference, not keeping exact track of time. I will keep track of time and ask that you also be mindful of your own time and I'll let you know when you get to your rebuttal period. And for respondent and intervenor, you have a total of 15 minutes for your response. Have you discussed how you'll share your time? I'll be speaking on behalf of the respondents. >> Okay. Thank you. So, um, with that, petitioner, please, uh, state your name for the record and begin your argument. >> Uh, my name is David Golder. I am one of three petitioners uh, on this matter. As mentioned, I will be speaking on this matter, and I just wanted to thank you for your time, madam chair, as well as fellow board members. Today, um, what we're before you is reference to an appeal of order 3019 issued by the city council of Beaverton. This actually denied our appeal as well as affirmed a planning commission decision to approve a design review compliance letter for an 8,500 ft playground cited on Mory Hill Christian Church property. This property is located in a residential zone surrounded by residential homes on all four sides. and the three of us are next door neighbors to this home and are being significantly impacted by the noise that's generated from this um as well as other neighbors. These are the items that were testimony, if you will, that was before the planning commission and some of the issues that were discussed before the city. These are impacts to our livability and appropriate use of our homes. We're not here to relitigate these issues before you. We're here to discuss the errors that are actually occurred by the city when making the decision on order 3019 which again denied our appeal and in the alternative um appears to have a satisfied meaning the application satisfied the approval requirements. Before I go any further though, I did want to ask the board if there were any specific questions or items you would like me to address. >> Uh yes, thank you. So, in terms of denying the local appeal, was there an indication that the there were the city believed that the petitioners didn't have standing prior to the final decision or did that come out in the final decision? >> It came out in two ways. After accepting the appeal, we received a letter from city staff stating that there were some questions about our standing and they stated that that would be resolved by the city council and they would prepare findings as I understood it. um no matter which direction the city council wanted to review. The actual final order though determined our standing. >> And then in terms of process um did that determination have any impact on the process? For example, were you prohibited from submitting anything, any testimony, any argument to the city council? >> We did not have any um prohibited from sending any items or speaking about particular items. What we did have an issue with is the fact that we have to address standing alone. based on the code, we had the ability, we had standing, we assert and during that time to have our full merits uh appeal considered by the council during the time that was allocated as well as to have the council themselves spend the time on the merits itself. Instead, we had to spend considerable amount of time addressing standing both during our time. And if you look at the record, the council themselves spent very little time actually addressing the merits and even in the order itself, it spends considerably more time actually addressing standing than it actually does discussing the merits that were conditional, the decision on it were conditional and in the alternative. >> Okay. And then in terms of your third assignment of error, what thank you for that answer. Um >> yes, >> you argue that the nature of the use is a threshold issue for design review. The respondents respond that whether the use is permitted or conditional, it goes into the design review either way. And so any error in the determination about the nature of the use, it would be harmless for purposes of the design review approval. My first question is what makes the nature of the use a threshold issue for design review. >> Um design review has threshold criteria for the application. It was a question that came up before the planning commission. They had one set of findings. The city removed that set of findings and then inserted additional set of findings which they have the opportunity to do at the council level. The part of the issue that comes up is what they ended up approving um for the threshold portion is, for lack of a better term, the landscaping, the grading, the fencing, the wall. They state that in fact there was no code or any language that dealt with the playground structures. Part of this is an issue as well is it ties back to the second assignment of error because we don't actually don't even know what version of the code this was approved under and the threshold issues under different code versions actually are different. So there's a fair amount of lack of understanding as to okay how are these individual play structures approved in particular when they're citing it that is an incidental cheer uh accessory use of the church when it's a required use for the playground and also being used by the public and the public themselves is what's causing so much of the noise. These issues were never addressed in the order and there is insufficient information in the record and I recognize that some of that is really our second assignment of error, but it does tie together to the third. All right. I'm still not really clear what makes it a threshold issue for design review. I understand the the red brief to respond whether it's a permitted use or conditional use. The design review regulates the physical characteristics and so any error on determining the character of the use would be harmless. What in the code makes it a threshold issue and then what is what difference does it make in terms of design review? >> So we asserted early on that actually this was part of a conditional use for the playground itself. There was a modification for conditional use application to approve retroactively approve and increase enrollment for the preschool. Uh playground is actually a required element for the preschool was not included in that application. Instead, what we were faced with was the design review compliance letter application that appeared after the um neighborhood notice and neighborhood meeting that ended up actually approving the playground itself through the design review. We assert that actually both are needed uh under the code and that's Does the design in your view does the design review approve the use or is it simply regulating the physical characteristics of the structures and the landscaping and the fencing? >> Based on what the city actually described in their order, we don't actually know. It appears that it actually approved the landscaping, the grading, the fence, and any of that. nothing else was actually appears to be approved or as I mentioned they stated in the order that the actual structures themselves there was no code language that applies to it well they're part of the conditional use at that time for the playground um our assertion is that it's actually required as part of that conditional use in the design review is just for how it looks in essence and for the landscaping and items like grading So why would any error in the characterization of the use in the design review matter in terms of remand either there's error in the nature of the use whether it needs a conditional use modification or not that's not before us in the design review. Why is the nature of the use a threshold matter for design review? What in the code makes it a threshold matter or why does it what's the implication that would have significance if we remand it? Say say we agreed with you that there's it's either insufficiently characterized or the characterization is accessory to the church is not supported by substantial evidence. What's the upshot of that on remand? >> Um the upshot is twofold. One, it's not an accessory used for the actual playground or excuse me for the preschool itself. Furthermore, if you actually look into the code and look at accessory use, the definition under the code talks about it being incidental. And as we look it up, it has in essence no impact. Well, this is having a significant impact on the nearby residential homes. It's having an impact for the church itself because they're having to address these issues. What we're getting at in that particular point is none of this was actually addressed actually in the order itself. What in the design review criteria requires the city to address that in the >> The design review approval is actually the structures in addition to the land is what was applied for in this case. The city approved as a threshold issue the landscaping. As I mentioned, they did not address the structures themselves. They did not include them, it appears, in the order itself because they state there was no language in there. All of this is based again, and I'll shift to the second assignment for a second, on an application of a new date that occurred after the planning commission. We do not know what version of the code this was approved under as well. So, the threshold issue actually changes based off of which version of the code is being reviewed here. We actually don't know. >> So if the structures are not approved, the physical characteristics of the structures are not reviewed and approved in the design review, the design review is not approving those structures. So why wouldn't it be, as the red brief argues, an enforcement matter rather than a error in the design review? >> What I'm stating is that the structures themselves actually are part of the playground. You can't separate the structures from the land, its use, and how it's being done. They approved half of it. They didn't approve the other half of it. Yet, they went ahead and approved the design review compliance lever in its totality. We don't know what they actually did because they didn't actually explain it with any sufficient detail in the order itself. Nor did they address the application issues, nor did they address the date on the application issues, nor did they actually address whether the application was complete or not. What we're getting at here in this particular case isn't just the issue of standing, but also the fact that they didn't actually explain what they did on these matters. >> So, Mr. Golder, um the city's decision says that the expanded playground is an accessory use to the church. And I understand you to argue that it's not really incidentally subordinate or at least they didn't explain why it is. And what I want to know is if that's right, why did they have to address that in design review? >> Because I don't think it's one of the approved. Well, okay. Why are they required to? >> So, as part of design review, is my understanding is they're viewing this as an incidental use of the church. Correct. >> Right. So, but where in design review standards or purposes or anything do you is there something that says, "Hey, we have to make sure this is actually some sort of an allowed use before we get to the design review characteristics." >> Okay. Thank you for clarifying the issue pertaining um to the design review. Yes, they're actually able to look at the design and approve the design. That does not approve the use. What we're saying is they didn't even approve the design of the actual structures themselves in this particular case. What they approved was the actual land and the changes to the land itself. Half of the half of what was approved was unressed in the actual order. We don't know how they approved the actual structures even under design review because they didn't sufficiently explain it. Nor do we know the actual criteria under which it was actually approved because of the questions about the application date. >> Okay. >> And and you're at did you have further questions? >> You're at three minutes for rebuttal. You can continue on with your primary argument or you can remain or you can u maintain that time. >> No, I'll go ahead and maintain the time. The one thing I will bring up um as I mentioned before the application issue in this particular case is quite important because we have no idea what they actually approved and under what criteria in addition to the fact that we had standing and could not actually um share our full full merits based appeal. Thank you. >> Thank you. And you'll have two and a half minutes for your rebuttal. So we'll turn to the intervenor for your argument. Please state your name for the record and begin. >> May it please the court and so powers on behalf of intervenor respondent Ash Creek parent cooperative play school. Ash Creek and respondent city of Beaverton filed a joint response brief in this case and I'll be speaking to that brief today. But I want to note that the city's attorney Robin McIntyre is also in attendance and available to answer any questions you might have about the city's interpretation of its own code. The challenge decision in this appeal is a relatively minor one. a type 1 design review compliance letter or DRCL. The decision is both minor in process as a type one and also minor in what it retroactively approves, namely a 2011 expansion of a play area that had long existed at the church where the nonprofit Ash Creek Preschool operates. The expanded play area, in the same form as it is in today, already existed at the church when Ash Creek started operating there in 2015. Indeed, as you've noted, the player is considered by the city to be an accessory used to the primary church use of the site as city records show that the play area predated the 1994 approval of a conditional use permit for a prior preschool at the church. Uh the clearest statement of that accessory use determination is at record 233 to 34. In that context, I'll start with the third assignment of error as you have where petitioners fundamentally conflate design review with use authorization. Luba has already dismissed petitioner's appeal of the conditional use permit for the school and that permit is not in front of you today. Instead, this limited DRCL decision only needed to address the applicable DRCL standards and criteria in the city's code. None of which required the city to determine which use the play area is accessory to. Moreover, as mentioned, the city did determine that the play area is accessory to the church. The church itself is a conditional use and at the time of this DRCL decision. So was Ash Creek's preschool. Therefore, even if the city could have determined that the play area is accessory to the school instead of the church, the same approval criteria for a DRCL decision would have applied. And any error related to which use this is accessory to is harmless at best. The city did not use the DRCL to quote bypass conditional use procedures as petitioners contend. Again, Lewis already dismissed these same petitioners appeal of the conditional use permit. It was approved by the same city council in the same hearing as the DRCL and therefore the conditional use process was not bypassed at all. If petitioners believe there's a violation of the church's conditional use permit or the cities, they can raise that with city code compliance, but this very expensive appeal of a type one design review is not the legal forum for those concerns. >> Was the city required in order to approve the design review, was the city required to determine the nature of the use? No, there's no applicable standards or criteria that require determination of the use. Now, you couldn't get into design review without that determination. Uh, but the only [clears throat] applicable approval criterion for the DRCL that the third assignment of error relates to is subsection C1, which acts about the threshold requirements for a DRCL. And I think that's where the confusion has happened here. There are three levels of design review, DRCL, design review 2, and design review three. And the first approval criterion for each of those levels of design review askked the same question of whether the proposal satisfies the threshold requirements for that design review. Um, and so petitioners pointed out to city council that threshold M, on which pling commission had relied, didn't apply to this project because both the school and the church are conditional uses. >> [clears throat] >> M does speak to whether something's an allowed use or a conditional use. And city council agreed with petitioners that uh the play area still required DRCL, but not under that threshold, under two other thresholds that were triggered. Thresholds are a point, place, or level that marks a limiter boundary. that's consistent with the code's context and structure. And that explicitly refers to the thresholds as standards for when quote an applicant must utilize a DRCL or when an application for a design review 2 or design review 3 quote shall be required. Those thresholds tell you which level of design review are you in. They don't tell you that you need to make findings on a youth use authorization. So, so Miss Powers, um, did I understand you to say that, um, maybe I'll use the word prerequisite instead of threshold, that there has to be a prerequisite that this is an allowed use of some sort before you get to design review. So, I think on like page 32 of your brief, it sort of says that. Um, and so it seems like the decision finds that this is a accessory use to the church. Is is that necessary to then get to design review? >> So under the city's code 402010 2A, all listed all uses listed as conditional uses in the R&B zone where this project is require design review. That's the only place that use sort of comes in. Um but it's in it's not in the approval criteria for the use. It's, you know, do you have to get a design review approval at all? Um, the only possible alternative conclusion is you didn't have to get this decision. So, there'd be no prejudice that they got more process than perhaps they were allowed. >> Well, what if what if petitioners, right? I I understand them to argue that this is not an incidental and subordinate use. It's it's bigger than that. What if they're right about that? How do they how would they make that challenge if you if they can't do it here? >> They certainly could bring that up to code compliance and say that the church is not in compliance with its conditional use permit that initially approved this play area as subordinate to the church. They could say, "Well, now that you have this bigger one, that's no longer incidental and subordinate." But that would be a question about the church's conditional use permit because before the 2011 expansion of the play area, it was approved under the church's conditional use permit. So that's that's where that question lives. >> So theoretically, they could come in and do that and the city would say even though the playground was built to design the design review standards, fine. Turns out they weren't allowed to build it in the first place and petitioner could theoretically win. You wouldn't come back and say, "Oh, no, we had design review. You can't challenge that now." >> No, I I think the design review is fully separate from the use question. Um, and you know, they've argued that this is a playground instead of something subordinate and accessory to one of the other uses of the site. Even if that were true, that would be a conditional use. And all uses listed as conditional uses in the R&B zone have to get this design review approval. So it doesn't change anything in this case. And the use question under the conditional use permit for the church or a playground or the school is not in front of you. >> Okay. So do you like that example you gave in your brief? I think it was for a dance studio in an industrial zone that that if they if you eventually get to the question of whether it's allowed or not, whether it got approved for design review is that's that doesn't matter. >> Right. Exactly. Design review doesn't necessarily approve a use. It approves the physical characteristics of what's being put in. Just serves a very different function under the city's code under most codes. >> Okay. Thank you. >> Yeah. Happy to answer any other questions. I I also want to note that the findings do apply all DRCL standards and criteria to the entire project expressly including in the project description at record five the replacement of play structures and the installation of an additional swing set. So the appeal decision is not as petitioners have implied limited in scope to the aspects of the proposal related to thresholds H and I. They, you know, applied what you might expect from design review, the applicable design standards in chapter 60 and they provided findings on each of those. And petitioners have never identified a design standard or any other approval standard that the structures or this project more broadly fails to meet. So for these reasons, respondents ask that you deny the third assignment of error. I'm going to turn to the second assignment of error unless there's more questions on the third. It's undisputed that on November 22nd, 2024, well before the December 10th, 2024 Denovo City Council appeal hearing, the city received an application form signed by an expressly authorized representative of the property owner church, and the city found that approval criterion C3 was met. All applicable application submitt requirements had been submitted. petitioners agree that the application form was signed by the church and they make no argument that it was defective in substance uh to provide the owner signed application form that's required. Instead, they only argue that the owner signed application form was not in front of the planning commission. And in this context where city council held a denovo appeal hearing, accepted new evidence from anyone who wished to submit it, and provided petitioners with an opportunity to respond to such new evidence, it's not relevant whether the evidence that supports city council's finding was in front of the lower decision-making body. Planning commission's decision is not the final city decision on appeal to Lubath. city councils is and city council's finding of compliance is supported by substantial evidence in the record. To the extent that petitioners try to recast this as a violation of approval criterion C11, uh we believe that argument is waved. They carry the burden of showing preservation of their arguments and have not shown and we could not find anywhere that they or anyone else raised the CL level appro approval criterion with the required specificity. Moreover, the application form is outside the scope of C11, which only applies to applications and documents, quote, which will require further city approval. That plain language shows that C11 is intended to reach applications like the conditional use permit, not an application formality like this one that does not quote require further city approval. And perhaps most importantly, in the context of a denovo appeal, this was the proper sequence. They raised their objection to the owner signature matter in their local appeal of planning commission's decision. They received the duly owner executed application form a full 2 and a half weeks before the December 10th city council hearing and had every opportunity to respond to it in orally and in writing. That's not improper sequence, nor is it prejuditial procedural error. Instead, it's the process working as designed. It cannot be that C11 was intended to prevent parties from adding evidence to the record in a denovo appeal. Finally, under the first assignment of error, petitioners have failed to establish that their substantial rights were prejudiced by the city's determination that they lacked standing to appeal the DRCL to city council because the city nevertheless afforded petitioners exactly the same full denovo city council hearing that they would have received as parties with standing. I'll note that I heard today that they are making an argument about having to spend time addressing standing in front of city council and uh that is an issue that wasn't raised in their briefs and shouldn't be raised for the first time in oral argument. Regardless, not only was city council correct in their code interpretation that petitioners did not have standing, that issue doesn't need to be reached. City Council provided alternative findings on the DRCL approval criteria on the merits and here a remand would not accomplish anything. Petitioners have already received the full denovo hearing, testified orally, submitted the bulk of a written record that runs over a thousand pages. City council considered all of that record and decided the case on the merits. Those merit findings are the subject of the second and third assignment of error. So even if the city were wrong about standing, this DRCL approval would still rise or fall on the same merits findings reviewed in the same appeal. >> So is your after the planning commission decision, if they'd wanted to if if they'd wanted to appeal the the design review, they would have needed to appeal the planning commission decision to us even though there was a local appeal >> I think they could have appealed the planning commission decision to you potentially, [clears throat] but they were given the local process in the alternative to ensure that no matter how that code interpretation issue came out, they were provided the process and the merits Not sure that addressed your question. >> Well, just if if we agree with you that they didn't have standing, that ends the case, right? Correct. >> And so [clears throat] that would mean that what they would have needed to have done was to go straight from the planning commission decision to us, >> right? >> That's true. [sighs and gasps] That would >> they need to do that while Oh, we've still got your appeal going right now. [laughter] Well, it would have then just been an appeal of the conditional use permit and if if they had sort of accepted that proposition from the letter that happened between planning commission and appeal. >> Okay. Thank you. >> Uh in closing, I want to speak to what this case is for my clients. Ash Creek is a cooperative preschool run by its parents. They take turns as classroom assistants and they serve as its board. Church volunteers made this play area larger in 2011 and they did not know that the city required a permit to do it. And when Ash Creek learned years later that city records showed a smaller play area, nobody hid it or tried to take a shortcut. They voluntarily applied for design review the code calls for and went through months of staff planning commission and city council process. What petitioners ask you to do is remand a preschool playground so that a city council that has already heard at length from these petitioners and already decided the merits of this case can say the same thing a second time. We respectfully ask that you deny the >> Thank you. Uh we'll return to petitioners for your rebuttal. You'll have two and a half minutes for your rebuttal. >> I'll touch on a couple of the points that came up. Um first of all uh as it pertains to code compliance we did complain to code compliance that is what resulted in the design review compliance application in the first place as part of that process. That is how it actually originated. Um second of all the prior playground was not approved. It was never approved in any cup record whatsoever that is before you in in the record. Um, when it comes down to it, what we're also asserting here is there's insufficient evidence in the record. There's insufficient support in the order to even explain what the city did as it pertains to the application. It's clear a new application was submitted. What version of the code was it approved under? We have two different versions of the code that are out there. When it comes to the actual decisions that were made, there's insufficient information to explain how they actually got to this point to begin with. We don't know. What we're asking isn't to send this back to redo something that was already done. What we're asking is to send this back and ask them to follow the code and explain what they actually did here. There's considerable um lack of information to even understand as I mentioned what code version how the play structure was approved was it actually incidental and an accessory use how is it actually getting the design approved for the school and is that use required to be understood and approved prior to design review. I understand there's two separate applications here and we're dealing with both separately. And I understand that this is design review, but even within this one, I don't know how we can proceed if we don't even know what section of the code and version that this was approved under because of the errors of the application. [sighs and gasps] With that, I did want to close and also thank the board for your time. We did have standing in this case. Their decision on standing um wasn't supported. Um, and on top of that, we were actually impacted because of the amount of time that had to be allocated to this issue. They should >> Any final questions? >> No further questions from the board. >> Thank you for your time. >> Thank you. That will conclude oral argument. The statutory due date for our decision in these appeals is September 8th. We'll ask the parties to agree to an extension so that we issue our decision by September 29th. Is that okay with these parties? >> We have no objection. >> Yes, that's agreeable. >> Thank you. >> We don't object. >> Thank you. Okay, that will conclude our