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Oral Argument 2025-018 Le v. City of Tigard
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=AmJlYR7fP0w). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Hello. Uh, this is the time set for luba number 2025-08. Lee versus the city of Tigard. I'm board chairsio. Board members Wilson and Basham are also present today. And thank you for muting your audio when you're not speaking. That helps with our recording and background noise. I'm not aware of any pending matters in this appeal. Do the parties have anything that they need to bring to our attention? Nope. Thank you. Um, petitioner, oral argument is a total of 30 minutes and you have 15 minutes and may reserve up to 5 minutes for rebuttal, which is the time that you would have to respond to the city's argument. Do you want to reserve any of your time for rebuttal? >> Okay. Yes, I would like to reserve some time for a rebuttal. >> Okay. How much time? You may reserve up to five minutes. >> Uh five minutes. >> Okay. Um so just to note the clock that's on the screen uh is not keeping exact time but is there for reference. I'll be keeping track of time and I suggest that you also keep track of your own time so that um you can reserve that 5 minutes and then the city will have 15 minutes to respond um and then we'll go into the rebuttal. >> So uh can I just ask you to clarify? Uh, I have 10 minutes to go ahead and make my argument and 5 minutes reserved for rebuttal. >> Correct. So, you'll have 10 minutes to do your primary presentation. Um, which needs to be limited to material that's in the brief and then the city will do their argument for up to 15 minutes responding to your argument and then you'll have an opportunity at the end to do 5 minutes of rebuttal responding to the city's argument. >> Okay. >> Okay. Um, okay. Well, with that then we will just go ahead and get started. So, please state your name for the record, petitioner, and begin. >> Yes, my name is Key Lee. Uh, last name is spelled L E. >> Go ahead. >> Uh, yeah. So, basically, I think the argument is, um, multiple. Um, the city didn't give us any notice at all. Um, including all the other owners. Um, they were very aware of who we were. Um, we had actually been talking to them for months. Um the belief is that they kind of held us in limbo um went ahead and moved forward with a ordinance um without any notice uh of the hearings. We none of us were notified of the uh planning commission hearing or the um the ordinance uh that evening. Um, I believe that uh their main argument is that I didn't have standing, which is uh interesting because um their argument is that I showed up so I wasn't prejudiced, but again I didn't wasn't given any notice. Um the fact that I wasn't prejudiced, although they're claiming um I didn't argue at the right um time of the hearing and didn't ar make any arguments was because I had no idea that the hearing even was even being held. Um the issue with the um emergency um hearing um I think that's pretty obvious what was going on there. Um again uh they claimed there was an emergency on their ordinance that uh so many of us was were interested in the uh food car pod business. Um although none of us were notified about the hearing. Um, so that kind of conflicts what what they're saying is that um that uh there was need of an emergency but none of us were noticed. So why would we have an emergency? Um I think the other issues that we have is that um the ordinance itself doesn't list what those emergencies are um as far as where their findings were um and what the actual emergency was. Uh they had two conflicting ideas. Uh one was for the health and safety, but they didn't list exactly what that was. Um they also didn't list the um their findings on uh why they needed to go ahead and and um put emergency on so that so that we could all move forward. um the fact that they're they originally are trying to um uh their only argument really is my standing is whether or not I had standing to go ahead and even uh make the appeal. Um I think they kind of don't realize that this isn't about me. It's really about the ordinance itself and how they didn't notify anybody. So when they sit there and talk about my standing um in reality I have standing because again, you know, I was somebody that was interested. Um I have a food cart pod. They knew about my food cart pod in their in the um first planning commission. Uh they spoke about um notifying they knew who we were. Um so other than that, I mean really standing and notice I mean they didn't give us notice. They didn't notify uh what the emergency was. They didn't notify me um again, the ordinance was, you know, put forward uh as an emergency and there was no emergency that they listed and that's that's pretty much it. >> Okay. Did you want to talk about anything else or was that the your primary argument? >> I mean, well, everything I put in the petition, but yeah, that's my primary primary. >> And it's totally okay to stand on your petition. I think that's what you're saying. >> Yes. Thank you. Great. So, we will turn to the city for response. Um, petitioner, if you can mute your microphone while you're not speaking, and then after the city's response, we'll return to petitioner for rebuttal. So, council for the city, please state your name for the record and begin. >> Good morning. I'm Michelle Baala for the city of Tigard. Um, so I want to reorient the board to the facts on this case. um petitioner has mentioned several times about all the other food cart owners uh and all of the other people involved that he is the only one that has appealed. Uh Tiger has successful operators of food carts all over the city. This is not about them. This is about petitioner and this one specific ordinance. Um the um his statement that uh he did not receive notice. As I said in the petition, he was not entitled to notice. The city properly filed uh the notice of the council hearing of the planning commission meeting with our agendas as we usually do as the law requires. There was no additional notice required. There was no measure 56 notice required. There was no newspaper notice required. The city followed all the appropriate procedures. Additionally, even if the city hadn't, he would have to show substantive prejudice. He was at the council meeting. he timely appealed the uh ordinance and so he cannot show substantive prejudice even if he was entitled to notice. >> I have a couple of questions on this. So with respect to the um petitioner's assertion that the city was required to publish notice in a newsprint paper. Um I didn't see in the petition that cited a statute that requires that. Are you aware of any requirement there? And I think the code itself says publish but doesn't specify the manner of publishing. Is that accurate? >> Yes, correct. And the city's code actually deliberately removed the newspaper notice requirement several years ago when we updated it. So, no. Measure 56 is the only generally applicable notice that potentially could have been required. >> Yeah. And that was my next question was on measure 56. Uh what is the city's position for why the measure 56 notice was not required in this case? So this case actually expanded opportunities instead of limited them. It was not a zone change. It did not restrict any activities that uh could have previously or would have previously been allowed. So it actually just clarified the processes by which uh food carts and food cart pods could be uh developed. So it didn't were there any previous regulations for food carts before this ordinance was adopted? >> Yes, there were. >> Okay. So is this was this ordinance amending those regulations or was it adding regulations? >> It was mainly amending and clarifying the processes. Uh there was some gaps um in when overlapping code amendments were presented. There were some gaps created in terms of food cart regulations. So this filled in the gaps and clarified how they could be developed and what process they'd follow. >> Okay. So I think you're being careful by saying filled in the gaps. Did it did it add any additional regulation or was there just there were no regulations covering what this these amendments did? I'm trying to understand I think petitioner's position is the this ordinance is adding new um land use regulations to food carts where there were none before. And so under the measure 56 statute these are additional limitations. So measure 56 notice was required. I'm trying to understand what the ordinance does exactly to kind of get some sense of of that issue. >> Right. So, um so yes, there were previous requirements >> the same section of the code. >> Yes. >> Okay. And those are not zone specific or I imagine food carts are allowed in certain zones and not allowed in other zones. They are not zone specific in the ordinance, but yes, they are allowed in some zones and not others. I'm trying to Um so uh so previously uh so it largely consolidated the standards that we previously had in a couple different places. Um the previous code had no standards or approvals um for food. So prior to uh what we call our tiger made code, there were no standards or approvals for food cards. That code was amended I believe in 2024 and then food carts were allowed through code and a policy interpretation. So what we allowed is actually a process for food carts as a standalone use that had not previously existed. So, uh development, one of the reasons for the emergency clause was to um fasttrack this approval process because previously food cards uh were largely not allowed or they were allowed as a temporary use process. >> Is it the case that the pre-existing regulations were not part of the zoning code, the city's landies regulations or or or were they? >> They were. Yes, it was the same code that was amended. >> Okay. So, they're part of the landies regulation. Okay. Yes. >> Um, the petitioner is saying that before the ordinance he could have a lot of food carts and now after the ordinance he's restricted to three. Is is that correct or or not? >> No, that is not correct. >> And why is that? >> There was so there was no process by which uh the city would have allowed 20 food cards, >> not even four food cards. So the previous uh regulations were uh mainly limited to uh three food carts. >> Is there anything in the record where we can look at that to see what what what the limitations were on the number of food carts before the ordinance and what the number of limitations on the food carts were after? >> Yes. So um looking at the code package um so the cities so the actual text Uh so it starts on page 12 of the record. So 18750 was the food cart chapter so page 12 is the clean version it looks like. Uh so 188 18440 uh removed food carts from the temporary use provision and moved them into the standalone chapter. Uh so yes um starting on page 12 of the record and then uh the changes to 18440 are on um page 19 of the record. And uh to respond to one of the earlier uh questions, it's actually the new regulations that expand the opportunity to go up to uh 20 food carts. The previous regulations were uh limited to three. So again, this actually was an expansion and a clarification. It was not a limitation. >> Okay. So that's the city's position for why metric 56 notice was not required because your position is that this these amendments do not limit or prohibit uses that were previously allowed in the affected zones. >> Correct. The previous uses were much more limited. This created the process by which they could develop. >> Okay. Thank you. That answers the question my question. >> Thank you. Um and then the emergency cause clause as stated in the city's argument. Uh that was uh information about the justifications for that was provided both in the ordinance and at the hearing itself. Um case law gives a lot of deference to uh the local government in justifying that and the city has more than met its burden on that. And if there are no other questions uh No further questions from the board. Thank you for your argument. Um we will return to petitioner. Petitioner, you will have five minutes for your rebuttal. >> Yes. I think that's a little bit of mis um uh misdirection maybe. So the tiger made was a temporary use uh um food court cart ordinance um that limited uh the carts to four four three cards. Prior to that, there was a rule and that's the one that I actually operated and the other three um food cart operators operated on was um a rule I guess it wasn't in the uh code but we operated with the understanding that there was no limit. Um actually was working with planning. I had planning uh approval. I had my business plan prior to that. But the idea that they can move a an ordinance from uh a temporary use and create a whole new chapter, in fact, they actually took that chapter away from another chapter, included uh other parts of it, the fukkart pod, and and and more restrictions on that. Um the tiger made, which he refers to, was never repealed. It was just literally uh eliminated uh and then moved to a whole new section and then added um uh number to it and some rules to it and then apply to us through emergency clause. Um again, whatever they want to justify the emergency clause. Uh the only two things that are listed on that ordinance is um for the health and wellness uh safety, but they didn't talk about anything what created that. Uh there was no time limitations on that on that emergency. And then basically uh they're they're claiming it was because we all were you know applications were waiting and and we you know they wanted to move us forward but then why the emergency and you know obviously I can't talk about a lot of things that have happened since then that that pretty much show that this emergency was was BS but um >> I want to understand for the measure 56 um assignment of error what your position is on what what this particular ordinance does these amendments to the development code do to limit or prohibit the uses that were previously allowed? What are the new in your view? What are the new limitations or prohibitions that didn't exist before this ordinance? >> So again, the measure 56 um I had a contract to purchase the property, but none of the land owners actually got any notices. There's no notices that are listed. So there was no notice to anybody regardless of whether it's to me. So the pro uh provision for me was prior to the Tiger Maid I had actually been in operation uh um was working towards um in development to develop the 20 cards. I had approvals. We actually went through the city uh to talk about stuff and then in Tiger Maid happened in um May of 2024 and everything was great and then all a sudden uh somewhere in September of 2024 they decided we all can only have three. were in violation of any more than that. I had five. Um so they held us in limbo while they secretly um put together this ordinance. Um fortunately I just got last minute notice. Hey look, you know they're talking about >> So I just want to slow down. I just want to understand your position is prior to these amendments the law wherever it was what it was allowed more than three and so these amendments change that by allowing only three. That's your position. Plus they added uh uh system development charges and and uh fees that were not there significant significant uh system system development charges. >> Okay. >> But am I am I correctly understanding what your position is that there were more than three were allowed and then this amended things to allow three? That's your position? >> Yes. >> Thank you. >> Go ahead. You still have some time. >> Okay. Um I mean that's pretty much it. prior to Tiger Maid, they for they they completely forget about that there wasn't a rule and that we followed those rules and then they used Tiger May to shut us down for because they knew that Tiger Maid didn't target uh food cart pods. It only limited to three cars. So, they didn't have a food cart pod section. So for them to sit and say, "Hey, look, this is an amendment." But they they took that out of uh temporary use and and created a whole new section, which I think would require that the prior uh section needs to be repealed and uh and um I think there's things that need to be done to put a whole new section, including uh notice. Um and that's pretty much it. >> Okay. Uh thank you both parties for your argument today. That will conclude oral argument. The statutory due date for our decision in this appeal is December 4th. Uh we'll ask the parties in advance to agree to an extension so that we can issue our opinion no later than December 18th. Does that work for these parties? I see agreement. >> Yes. Okay. >> Thank you very much. Have a good remainder of your day.