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Oral Argument 2026-009 1st John 2:17 LLC et al v. City of Boardman
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=qB1tmjPOtnY). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good there. We'll just wait >> [snorts] >> All right. All right. Good. Almost afternoon. Good morning. This is the time set for oral argument number 2026-009 First John 217 LLC versus the city of Boardman. I'm board chair Samudio. Board member Basham is also present today. Board member Wilson is not present and will not be participating in this decision in the decision this appeal. Please mute your audio when you're not speaking. That will help with our recording quality and this oral argument is being recorded and live streamed. I'm not aware of any pending matters in this appeal. Is there anything that the parties need to bring to our attention? >> Uh not petitioner. >> Thank you. Oral arguments total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> I'll reserve five. >> Okay. And I'll keep track of time here and ask that you also keep track of your own time and just so you know, the clock on the screen is for reference, but it's not keeping exact time. And responding, you'll have 15 minutes for your response and I also will keep track of that time and ask that you would be mindful of your time. So, with that, petitioner, please state your name for the record and begin. >> Ty Wyman here uh as attorney for the petitioner. Um I thank the board and council for its for its time and attention this morning. Uh on my review, the case is uh fully briefed uh and that I think puts count all council here uh primarily to address questions that that the board may have. Um the petitioner has cited failure to demonstrate compliance with BDC 4.1.600 sub G sub 3 and that frankly is just the core if not the entirety of the case that that criterion. I I don't see a dispute that that provision applies to to the decision. I think all I think uh both parties agree on that. Nor do I see a dispute as to what that provision requires. It requires in the alternative either presently adequate public service public excuse me, public facilities, services, and transportation networks or that those facilities, services, and networks are planned to be uh provided concurrently with development. Now, we briefed uh primarily the interpretation uh of those provisions. Uh and we certainly stand on the positions that we submitted in the briefs. But the respondent uh has as I read the briefs has uh provided uh an interpretation sort of an implied is sort of the that the findings city's findings um set forth an implied interpretation. As described in our reply, we're willing to assume for purposes of argument that those interpretations are correct and the two interpretations proffered by uh council are that quote the property includes existing and future park properties and quote the affected area means the entire city. Still, the record fails to demonstrate compliance with either alternative in um G3 as as previously described in the central de- deficiency comes down to record page five where the city um decision states that city and district owned properties are cur- quote are currently or can be served and quote. And it relies um for concurrency on future planning review. Quite simply, can be served is not ex- does not establish present adequacy, which we believe the criteria requires, and future planning review does not establish um concurrency with future development that that um Excuse me, that facility services and networks planned to be planned to be provided will be concurrent with future development. As to the concurrency issue, we cited uh Kind v. City of Bend uh just on the just on the fact that the board addressed construction of a very similar concurrency provision and found uh that future adequacy review is not equivalent to facilities being planned for concurrent pro- pro- provision. Very simply, we cannot know the nature and extent of future land use reviews, particularly as to the load that will be play- that they will place on park and recreation facilities, and I might note record page uh I believe it's 1212 uh consists of some back and forth, some written back and forth between my client and senior city staff, and I'm going to read it for you. The staff response is um it's it speaks to purchase of property for the purposes of building a park or a trail facility. It says those future actions may be based on recommendations of the PMP, but will have specific approval processes that will need to be followed at that time. But we don't we don't know what those we don't even know frankly even if such processes uh if if a land use process will be required um if it will meet the threshold of a statutory permit um and even if it does, what we don't have assurance of what the criteria or even knowledge of what the criteria will be that would apply in these future land use reviews. The response brief uh notes that the Kind case was quasi-judicial and addressed more of the adequacy of of findings. It it is quasi-judicial and it did address the adequacy of findings, but nonetheless it also addressed construction of this very similar uh currency provision. Um we request remand uh just for the purpose of the city demonstrating compliance with BDC 4.1.600 sub three sub G sub three. We're to be clear not asking of course for the board to dictate trail alignment or engineering details or any particular uh implementation mechanism. The legislative nature of the PMP does not does not eliminate, I think the parties agree does not eliminate PDC 4.1.600 G3 as a criterion. That criterion is in my experience relatively stringent. Um, and because the record is not adequately demonstrate, uh, either present adequacy or concurrent provision, we think that the decision should be remanded. >> Counselor, let me ask you about the the Klein versus the City of Bend case. You said as you pointed out that's a quasi-judicial decision. Uh, the city argues that in the context of a legislative decision that's adopting a master plan that the concurrency requirement is is satisfied differently. Uh, do you have a Do you have a response response to that? >> Yeah, I don't I don't believe, your honor, that it is applied, you know, a materially different manner. Uh, and I would go to the words of the criterion uh, itself, which is concurrent that the that the facility services and networks described in the PMP are must be provided. It must be must be shown. There must be a finding that can be provided. I want to apologize. Literally, they are washing the windows right outside of my office. Um, so we're not playing any handball here in the in the office. Um, it says that those uh, facilities, networks planned to be provided concurrently with development. And I did not read liter- literally in the Klein case the criterion at issue quoting is planned to be provided concurrently with development of the of the property. So, um, yes, the circumstances and in the context do do differ. I I I don't doubt that at all. As I iterated or suggested a bit in my my argument, I find this to be a I'll say a surprisingly stringent legis- uh criterion for for a master plan legislative, but good on the city for that. It wants to be robust in its in its master plan for parks. >> I'll I'll seed my time. >> Okay. Okay. No further questions from the board for petitioner. You'll have your full 5 minutes for rebuttal, and we'll turn to the city for the response. Please state your name for the record and uh provide your argument. Thank you. >> Good morning. My name is Emily Guymond, um representing respondent City of Boardman. Um I want to quickly start by addressing how Mr. Wyman began his argument. So, I agree that the dispute here centers around the interpretation and application of BDC 4.1.600 sub G sub 3. Um I understand that for the sake of argument, Mr. Wyman is not disputing the respondent's interpretation of that particular criterion as explained in the respondent's reply brief. So, um I'm happy to take questions from the board on that particular point, but um given that, I'm going to pivot directly into um the con- concurrency issue that that Mr. Wyman points out. So, um I want to take a moment to contextualize what the PMP is, parks master plan. The PMP, the adoption of which is at issue here, what that is in the city's overall land use planning system. Um so, the purpose of the PMP is to be a master planning document through which the city builds upon and formulates plans to more particularly implement the city's recreational needs as um established in the city's comprehensive plan, chapter 8 of the comprehensive plan. So, it's a it's it's a document that evaluates needs, inventories the city's current recreational property assets, and then measures the current assets against those needs. And it concludes that there's a shortfall. The city needs more recreational properties to meet the recreational needs it forecasts over the next 10 years, which is the lifespan of the PMP itself. Um so, in that sense, the PMP is a component of the comprehensive plan. It flows from the comprehensive plan. It was um produced, developed in alignment with comprehensive plan, and with the comprehensive plan's other components, like um the city's transportation systems plan, for example, or the and the city's development code, which implements the comprehensive plan itself. Um so, it is a high-level planning document um that looks 10 10 years into the future. And so, the city's application of the criterion that um you know, and I agree with the petitioner presents two alternatives, um a finding that the properties in the affected area are currently served by adequate public facilities and such, or will be served by such facilities concurrent with future development. Um the PMP itself focuses on future development. And it it as as the first version of the PMP that the city has ever had, it recognizes and and the city recognized and staff recognized in the record that updates and modifications to the city's overall land use planning system will be required going forward in order to implement the goals of the PMP itself. And so um through that recognition, which is in the record in the PMP itself, and through um the staff presentations, the planning commission, which the city council adopted in its final decision, um the city city has un- has gone further than um you know, expressed a general intent to have plans for the concurrent development of such facilities in the future. I believe that's how um petitioner phrased it in the reply brief. The city had doesn't have just general intent for those development plans. The PMP goes into significant detail about what those plans should be in order to implement the projects within the PMP. So, for example, um the PMP references the city's transportation systems plan to ensure that properties to be used for recreational development are adequately connected to um transportation systems like pedestrian access, street access, um pedestrian crossings to access parks. Um the PMP also identifies a need to acquire properties in the future for recreational development and identifies uh that the city will have to adopt a an acquisition policy or strategy in order to guide the acquisition of such projects from future development so that um parks facilities scale as development increases. Um with all of that and to um the question posed to petitioner about Kian's applicability in a legislative land use process. It is it is a poor interpretation of BDC 4.1.600G3 to require that the PMP goes into specific detail about what those exact processes are. It's a long-term planning document as I stated. Um, it contemplates changes to the city's overall land use planning system. It would undermine the purpose of the PMP if the PMP was to go into uh, the detail that petitioner argues that it should in I'll also just circle back to set the landscape for the the standard of review here. So, um, the city's decision was a legislative land use decision. So, the adequacy or inadequacy of the city's findings to support its decision aren't grounds for reversal or remand here. Um, instead the proper standard is whether the record itself shows that the um, supports [clears throat] the city's application of this particular criterion. Um, I'm happy to answer questions about how the record supports the city's interpretation of the terms within BDC 4.1.600 sub G sub 3. Um, and I have just discussed how the record supports the application of um, the concurrency requirement in that same criterion. Um, >> All right. I understand your position to be that uh, whenever new park facilities are planned or prepared for development, there would be some kind of land use review process under the city's code to prepare them. Can you cite any land use processes you think would likely be involved in that process? >> Um, I can't off the top of my head, but the development So, the PMP itself does not trigger any sort of development process, but the PMP establishes the projects that the city will um will work to will act upon in order to achieve the PMP goals. And as you said, one of those um actions is the development of further development of currently owned recreational properties like parks and trails and such or the development of um properties that have yet to be developed as such. And those those actions will trigger the appropriate land use review processes in the code. Um, which at this time, because the PMP is part of a larger overall update to the city's land use planning system, are not set in stone. And so, it would be it would undermine the purpose of the PMP if the city was required to firmly establish with particularity those uh processes at this exact time. But the PMP does express um far more than a general intent. It expresses a very fleshed out um process for identifying future planning needs and then um tying those future planning needs to the development of uses, recreational uses >> If there are no further questions, I >> No further questions from the board. Thank you. We will return to petitioner >> And I'm at 5 minutes, is that correct? >> Yes, that's correct. Go ahead. >> Um mostly clarifications. I you know, I think that responded articulated well it's case. But I do want to be clear I if to the extent respondent suggests that we are not the petitioner is not disputing the profit interpretations. We did that in our petition for for review. We were willing mostly for the benefit of the board to um you know, assume for purposes of argument that the interpretations set forth in the response brief um uh do do pass muster. Uh to the point that the facts the record simply still do not demonstrate compliance with this with this criterion. So I'd be clarified so I would be clear about that. Uh on the uh on the plan showing more than general in in general in tat counsel referred to future planning actions and I do want to um of the record and I think that it is meaningful because if I can find it here I might be able to quote it but what it does Yeah, at the bottom of record page 137 and this is in the in the PMP itself. It's describes a an implementation priority a dropped trail corridor dedication standards in the subdivision code and so I think going somewhat to uh Judge Basham's um uh question here to counsel uh we're not we're not even at a point where well, we don't have those subdivision or other land use applications. So so that we can identify the you know, the dedications that might be justifiable under Dolan. Uh we don't even apparently the the city has not provided even the code on which such subdivisions would be judged. And so, that's where we just find that the that this concert concurrency requirement is just simply not been met. Lastly, I would note that I thought I understood council and and the response brief to sort of say there's no findings requirement in legislative. I That is not my recollection. My recollection is that even legislative, you need sufficient findings to at least advise the board as to um what the decision maker was thinking. We cited Hyler, I saw in our brief, and I was trying to check this to confirm that Hyler was a legislative decision. object to a notion that there that the city was under no findings requirement. I understand that there's not a that there was not a statutory or apparently code mandate for findings, but still there's sort of a practical need for for findings to explain to the board the decision maker's intent. With that, barring questions, I >> No further questions from the board. Thank you. That will conclude oral argument. The statutory due date for a decision in this appeal is August 31st. We'll ask the parties to agree to an extension so that we issue our decision by September 21st. Is that okay with these parties? >> Yes. >> All parties agree. Thank you. Okay.