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Oral Argument 2025-069 Nedonna Development, LLC v. City of Rockaway Beach
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=9-0jRLQTD2E). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good morning. We'll get started in just a minute. I guess now it's that minute, less than a minute. Uh, good morning. This is the time set for Luba number 2025-069, Nadana Development LLC versus the city of Rockaway Beach. I'm board chair Zamoodio. Board member Basham is also present. Board member Wilson is not present and either will not participate in the decision or will watch the recording of the oral argument and participate. Please mute your audio when you're not speaking. That will help with our recording quality. And I'm not aware of any pending motions before the board in this matter. Anything bring to our attention? No, nothing from the parties. Thank you. Oral argument is a 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? >> Uh, yes, please. I'd like to reserve 3 minutes. >> 3 minutes. Okay. And uh I'll keep track of time here, but ask you also keep track of your own time. And just note that the um watch or the timer that's on the screen is not exact. It's just there for reference. And uh respondent, city, and intervenor, you have a 15 minutes to share for your response. Have you decided how you'll share your time? >> Yes. Um I will the city will have 10 minutes and intervenor will have five. >> Great. Thanks so much. I will keep track of your time also but ask that you also uh be mindful of your own time. So with that uh petitioner please state your name for the record and begin. >> Uh I am Dean Alderman alter e m the attorney for the petitioner nad development. >> Go ahead. Right. Uh members of the board, this is a fairly straightforward uh issue, but with a weird procedural history. Uh the city approved phase two of this old PUD. Uh you remanded it. On remand, the city unanimously turned down the application to build phase 2. There are two really basic issues here. One of them is how to map a zone that is designed to protect wetlands called the SA zone. Uh and the other is when if at all does an approval expire under a poorly written condition of approval of a final plan. Let me talk about the zone boundaries first. First of all, in 2008 when the city approved this PUD, uh it found that the property contained 3.9 acres of R1 land, that's a residential zone that allows housing, and 2.33 acres of SA land. That stands for special area. It's a wetland zone that allows virtually nothing. The city had and still has a code provision that says when you want to develop something in the area of uh the wetland zone, the applicant shall go get a wetlands delineation and that will become the boundary. As I said, the city approved phase two. The applicant provided a delineation. The applicant proposed the 20 lots in phase two to be exactly where the city had approved of those 20 lots in 2008. There was no change to the plan other than rearranging the lots within that area. Uh uh Oregon Shores the intervenor here appealed the city's approval of that. Um you remanded the approval on two grounds. Uh, one of them was that you explained you had questions about where the SA zone was and how the city should apply a section 3.080 sub5 of its zoning ordinance. That's the one that talks about delineating wetlands. You asked, you told the city to address uh Oregon Shor's issue, quote, regarding conflict with the SA zone as mapped on the city zoning map or to adopt findings or interpretations explaining the city's apparent conclusion that the modified phase 2 approval is consistent with the SA zone. The city agrees, finding number seven on page seven of its decision, it agrees that you asked it to adopt findings that rely on the comprehensive plan and the 1992 zoning map, which is the most recent zoning map the city has to determine how to apply that section. That's the only mention of 3.080 sub5 in the findings. the city ignored your entire direction beyond that one passing reference. Uh instead of trying to reconcile its 90 its 92 zoning map with the property, it said we will ignore completely our 92 zoning map. We will follow somebody else's zoning map that wasn't created until 2015. In this case, the Tulma County GIS system. We will ignore our final decision that the PUD contains 3.9 acres of R1 land and 2.33 acres of SA land. Instead, we will change the zone to say it contains 4.8 acres of SA and only 1.4 acres of R1. That's important because that has a huge effect on the density of the project and how many lots can be built. And finally, it it said or didn't say it simply ignored your direction for it to figure out what its code section 3.080 sub5 meant. It doesn't refer to that. It doesn't describe how the process in its code for setting the boundaries of the wetland zone should be applied here. It I don't want to be crude, but basically the city blew you off in your direction on this on this assignment of error. Um, at a minimum on remand, the city needs to adopt findings that respond to your actual instructions on how to apply 3.080 sub5. It needs to figure out how to apply its official zoning map instead of adopting a zoning map of somebody else that looks nothing like the city's official zoning map in a way that's consistent with its past decisions that specified the size of these two zones down to a hundth of an acre. Instead, it's adopted a decision that makes about oh eight or 10 lots illegal, eight or 10 houses illegal by putting them in a zone in its wetland zone even though they're not actually in a wetland. That's that's in brief our first assignment of error. The city needs to deal with the fact that it's made a decision not based on its code, not based on its zoning map, not based on its past decisions. It's simply ignored all of that in order, we think, to come to a conclusion that's politically correct inside the city. On the second assignment of error here also, the city pretty much ignored your instructions on remat. Uh the question here is how to interpret a condition of approval of the original PUD and of the approval to phase the PUD in two sections where the condition was in a section called final plat. And it read I quote the developer shall complete the improvements within one year of preliminary plan approval. The word plan is important. Unless an extension is granted by the city to complete the improvements. What the city granted was a deferral. The city said, "Now that you're doing this in phases, we want you to build very logically all the phase one improvements. We also want you to build a specified portion of the phase 2 improvements, streets, uh utilities. I think the phase 2 lots are all stubbed out for utilities already. The applicant did that 15 years ago. uh it didn't put any time limit on that. The city on remand said even though that time limit in the condition says you have to complete these improvements within a year of prel prelim pre preliminary plan approval and even though we have already given you the final plan approval for the PUD and even though you haven't up until this proceeding applied for a preliminary plan approval for phase two. We're going to say you should have built these improvements before you had even applied for permission to do the subdivision. That one, it makes no sense. Two, it can't be right. Three, it's the city doing violence to its code. It's confusing plans and plats. In order to make its findings work, it had to say, "We're going to pretend that tentative and final are the same thing, and they aren't." And it ignored your direction to evaluate how section 10.0501 and two of the code meant it. it quoted it and then otherwise it ignored you. I won't spend a lot of time on the third assignment of error. It's pretty straightforward. Uh we raised that mainly because since the city chose to change its zone from its zoning map to somebody else's zoning map at the end of this process on remand. Uh we need to preserve our argument that it doesn't make a difference because it approved 28 lots for this project. we will put the 28 lots wherever the city wants us to put the 28 lots but it can't go back and retroactively try to attack its 2008 decision which is exactly what it has >> Any questions from the board? Uh board >> Mr. Is the PUB designation a zone and underline overlay zone of some kind in the city scheme? >> The city was not quite clear about it. I think the best answer is that it is an overlay to whatever is underneath it, but it allows for certain it allows spreading out uses that otherwise would be constrained to lot size and areas. Our view is that once the city designated the entire parcel as a PUD that it gave the flexibility to the applicant to put the 28 approved lots wherever the applicant wanted subject to the city's approval but that to that extent especially because of the specific language that says you can have single family housing in a PUD. It overrode the restriction of the SA zone as long as the total density is not exceeded. I Okay, now I think I'm confused by if the PUD is an overlay but the underlying SA zone still applies, how then what is the relationship between that PD designation and the SA zone designation? >> Right. Uh let's suppose uh Chair Zumidio that this property consisted of two parcels. One of them was entirely SA and one was entirely R1 and they were being developed separately. The city would very reasonably say you get however many units are in the R1 that you get allowed take it divide by 5,000 square ft I think is the number. That's how many units you get. In the SA you can have recreational facilities of some kind but you don't get any housing. When this our view is that when the city said the SA and PUB together is exactly this s this much SA this much P this much R1 and your total density is limited to 28 units it's actually higher we didn't propose it to maximum density we can put those wherever we want inside the zone subject to the city's approval of the specific plan in this case we quite reasonably back in 2008 it wasn't We propose putting all of the housing in areas that were outside the wetlands uh to somewhat less than the maximum density on lots that are smaller than the minimum requirement in R1 because we were able to count the rest of the R1 and SA land together. The city made a specific finding on how much there was, which has never been challenged until until this until the prior appeal. Actually, >> was there a determination in the 2008 decision where the boundary of the R1 and the SA zones is on this particular property? >> As far as we know, records are incomplete. There was no specific determination. Uh the areas involved seem to follow the areas of the wetlands delineation that was submitted in 2008. >> Okay. Thank you. And you'll have your full three minutes for rebuttal unless there's further questions from the board. >> Okay. So we'll turn to the city for your response. Uh please state your name for the record and begin. >> Certainly. Good morning. My name is Lori Cooper. I'm an attorney with the local government law group and I'm representing the city of Rockaway Beach. The city's decision on this application is supported by substantial evidence in the record and responds directly to the questions and issues presented on remand by this board. With respect to assignment of error number one, the city that the city errored in how it identified the essay, the location of the essay zone, the city had thoroughly reviewed the administrative record as well as testimony and argument presented on the underlying and present appeal and reasonably determined that the phase 2 lots proposed for development are within the SA areas and as a result phase 2 application was denied since the SA zone does not permit residential development. With respect to assignment of error number two that the final PUB plan approval did not expire in 2009, the city found that condition number one, which required all improvements to be completed within one year, applied to the 2008 approval. And since those improvements were not completed, the final PUD plan expired in 2009. This is just summary, by the way. I'm going to get into more details in a second. With respect to assignment of error number three, that residential uses are allowed in the SA zone. The petitioner failed to preserve this argument because it was not re raised on the appeal below or mentioned in the board's remand. But even if Luba finds that this issue is preserved, uh the city's decision is supported by substantial evidence in his conclusion that the PUD designation did not amend or change those zone boundaries. So turning now to a little bit more detail on those arguments, uh regarding assignment of error number one that the city errored in how it identified the SA zone. Um all the city did in this case was try to follow Luba's direction and Luba had concluded that the SA is a base zone and so the city followed the board's direction precisely on that issue and sought to answer this question where is the SA zone located on the subject property. So first of all what the city did it it it reviewed the 2008 record and the present application to map to try to figure out precisely where those boundaries were and as Mr. Alman mentioned the records weren't great um from 2008, but the city did try to figure figure this out. Contrary to petitioner's inaccurate assertion that the respondent gave no weight at all to its final determination in 2008, the city in fact reviewed the entirety of the record and uh to adopt pertinent findings on this issue. And after performing a comprehensive review into the history of this application, the city found that it could not rely solely on that original PUD decision because in 2008, the planning commission did not specify the physical location of zone boundaries, nor did they reference a zoning map to make that determination. So the city couldn't rely on the final approval of the PUD, the 2008 approval and tenative approval of phase one of the PUD to demonstrate exactly where those boundaries were. These are reasonable findings based on the record and are issued in in conformance with Luba's express direction um in that remand and there's no conflicting evidence on this point. Petitioner is incorrect that the city is quote collater collaterally attacking its own 2008 decision. The city has not revised or amended that 2008 decision in any way and instead the city thoroughly and reasonably reviewed the record to come to a very clear and obvious conclusion based on that 2008 record that the planning commission and the city council failed to map that essay zone against the subject property in 2008. The property was mapped accurately uh in this current application. Um, pursuant to the board's remand, the city reviewed and analyzed accurate, up-to-date zoning information to deter to determine where the SA zone boundary is located on this property. Um, as mentioned, the comprehensive plan and zoning map are old. They have not been updated since 1992 and thus do not reflect zoning amendments since that time. And despite this outdated information, the city nevertheless attempted to overlay that 199 1992 map against this property to answer the questions related to the SA zone. So, Mr. Altterman had indicated that the city didn't follow the board's direction and didn't try to do that. Well, the city did try to use that 19 1992 map and those maps were just not adequate to accurately assess the zoning designations on this property. So, what the city did was was turn to its most reliable consistent source of zoning information for city property that it's been using, and that's a Tamok County GIS map. All zoning changes from 1992 through 2015 are reflected on this map and it provides parcel specific zoning information and this maps public has been publicly available on the city's website for quite some time. um without allegible accurate representation of zone boundaries for this property, the city believes reliance on this GIS tool is reasonable and appropriate to answer the present question as to where the essay zone is on the subject property. And no other applicable city zoning map or any other evidence presented conflicts with this information. So using the best available data, the city found that the uh the proposed phase 2 lots are located within areas mapped as SA wetland and because that zone does not permit residential development, this application was denied. um petitioner raises a new argument that the city failed to analyze whether or how the PUD designation impacts the analysis of where the essay zone is located on the property and the city maintains as I mentioned previously the city maintains this wasn't preserved this issue but in case the board does find it's preserved um the city did expressly find that this PUD overlay designation did not amend or change the location of any zone boundary lines and this is consistent with the code language and and actions of the city council in 2008. Regardless of the arguable inadequacies of the 2008 process, petitioner's argument does not answer the question presented on remand to the city and what zone are the phase 2 lots located. In other words, the PUD the PUD designation or lack thereof in this instant does not provide any answer or clarification to this mapping question. Turning to assignment of error number two that the uh final plan approval did not expire 2009. Luba clarified some critical procedural facts in this remand which the city adhered to and incorporated within its final decision in this application. First, Luba clarified that the planning commission when it originally approved the modification and final PUD plan in 2008 may possibly have aired in failing to require that the applicant submit a development schedule when proposing phase development and in failing to impose a specific deadline on phase development as required by the city development code. The city agrees with Luba's understanding of this 2008 process at decision whereby the applicant failed to propose a schedule for each phase when seeking modification of the original one-phase preliminary PUD approval and accordingly the city approved the modification and final PUD plan without such a schedule. The city further agrees with Luba's conclusion on remand that if such errors were made in the 2008 PU decision PUD decision they then they cannot be remedied in appeal of the present decision because the 2008 PU decision is final and not subject to LUBA's review and the final order in this application before us today reflects this reality. The the 2008 PU PUD decision is treated as final and it cannot be remedied at this point. Accordingly, the city reviewed the 2008 decision record to determine how best to reasonably interpret condition of approval number one, a 2008 condition of approval number one. Um, and that is precisely what Luba requested in its remand. The city intended the condition to apply to both phases. Therefore, the city found that the PUD has expired for failure to complete all those phase 2 improvements with one within one year of preliminary PUB appro approval. And these findings and conclusions were included in the final order for the application at issue here. Finally, assignment of error number three as that's about single residential uh development being allowed in the SA zone. As stated previously, we don't think this issue has been preserved. But even if it has, um there's no language in the Rockaway Beach zoning ordinance that authorizes development in SA zone. And in fact, um, the zoning ordinance does not specify or provide any clarity on what the PUD what the PUD designation actually does. In practice, at most, the PUD designation may simply be an administrative tool to identify what lands are bound by a PUD decision. The city would look to that PUD decision to determine what applicable standards have been approved. So, you know, based on this language, I mean, this is critical to understanding necessary limitations or allowances in a PUB overlay. And why would a parent zone designation be required unless a parent zone standards like prohibited uses or density, etc. Why would those be required unless they applied to that PUD area? The PUD designation does not override the parent zones permissions or limitations. So based on this plain language of the city's code as well as thorough review of the 2008 decisions, the city reasonably found that approval of the PUD application and the PUD overlay designation did not amend nor change location of any zone boundary lines. This critical question presented to the city and remand was identified with particularity where the where the SA zone boundary lies on the property to determine whether those phase 2 lots could be developed in accordance with the zones limitations and identification of the PU PUD designation here. Even if the planning commission and city council in 2008 failed to specify uh the PUD designated area with the essay zone on there doesn't doesn't answer any of these questions. So ultimately, regardless of whether petitioner is correct on this point, the question of where phase 2 lots are located is still the most important question to answer. And that's because the essay zone is a base zone as Luba stated in its remand with its own development standards and limitations. So to conclude, the city's decision is supported by a substantial evidence in the record and responds directly to the questions and issues presented on remand by the board. Uh and I welcome any questions. Thank you. No questions from the board for the city. We'll turn to intervenor for their argument. >> Thank you, Eric Rristen, on behalf of Interveners, Oregon Shores Conservation Coalition and North Coast Communities for Watershed Protection. Uh the primary issue I want to focus on is what we think is uh petitioners total failure to challenge each of the city's bases for denial. Uh like we've talked about the city had two bases for denial here that stem from the two assignments of error that Luba remanded in the prior appeal. Those are first uh that the development was proposed within the SA zone which doesn't allow residential development and second that that timing condition of approval from 2008 caused those earlier approvals to expire since the improvements for phase 2 were not made within a year. Uh we think that petitioner failed to state a case for remand or reversal regarding that second basis for denial in its petition for review. Um petitioner in its opening argument here just added uh some new arguments and actually started to talk about the condition of approval one uh for the first time here at argument which is pretty clearly not allowed under Lewis president. But if you read the petition for review uh it doesn't really talk about condition of approval one at all. The second assignment of error, which is maybe [snorts] the assignment of error that gets the closest to that basis for the city, not city's denial, focuses instead on a couple of Rockaway Beach ordinances that are not actually relevant to the city's findings. They're not in the city's findings. We haven't argued, nor has the city argued that they were controlling here. Um, I I think if you you really read that second assignment of error uh and read it closely and then read it compared to the city's findings on that actual basis for denial, you'll see that there's just a total mismatch and um petitioner really fails to get at the actual reasoning that was in the city's findings regarding interpreting condition of approval one. And we think that Ludas case law is clear that in order to challenge a local government's basis for denial, you know, the petitioner actually has to address the local government's actual reasoning and point to the relevant approval standards or local enactments. Uh, which is not a particularly high bar, but we think the petition for review really fails to do that here by not even mentioning condition of approval one or getting at the actual reasoning in these city's interpretation. Um, and for that reason, uh, because this issue is also an independent basis for the city's denial, uh, we think that mistake is fatal to the petition for review and that Luba really doesn't need to look any further Um, turning to the first assignment of error, uh, I want to make a quick point, uh, which is that re regardless of the city's reliance on the online mapping tool, the city showed in its findings that the property is within the SA zone on its 1992 comprehensive plan map. Uh, that's shown really clearly in the maps that are created by the city that overlay the property boundaries onto that uh, comprehensive plan map. We included a copy of that map in our brief. Apologies, I I re I referenced red squares on the map and then printed the brief in black and white, but hopefully the maps are are still clear. Um so we think that because that property the city showed the property is clearly within the essay zone you know without even using the online map that uh the city's interpretation of that uh finding was reasonable and should be upheld even if the board has concerns about the use of the more detailed online maps that petitioner focuses on in its arguments. Finally, uh, on the third assignment of error, really quickly, uh, Luba remanded the two assignments of air in the previous appeal to the city to consider with pretty specific instructions. A petitioner chose not to participate in that prior appeal and now makes arguments that could have been raised in that case regarding wholly new provisions of the Rockway Beach zoning ordinance that were outside the scope of Luba's remand, which the city limited arguments to. Uh for those reasons, we think that the arguments in the third assignment of air are are totally foreclosed and not preserved here. Um if there's no further questions, I will wrap up here. >> Thank you. No questions from the board. So we will return to petitioner uh for your three minutes for rebuttal. >> Right. Thank you, Chair Zumio. To take these points really quickly. First, despite the argument of the city, it did in fact ignore its zoning map. its conclusion that the Tamok County zoning map controls the city zoning uh is at variance with its past decisions uh and with its own zoning map. The shapes are nowhere near the same and under the city's interpretation uh 6 8 10 houses in the area are all inside the prohibited wetland zone. If the city is arguing that the PUD approval itself has expired, which is what I heard council say, then it's also making every single house on those lots illegal, which seems very inconsistent because they're all on substandard lots. That that is not a rational decision. Uh with regard to preservation of issue number three, to respond to Mr. Christristen's point. When this appeal went up the first time, this property in the city's view was properly zoned to allow the development. Only after the appeal came back did the city decide the zoning boundaries were something other than how the city had evaluated the first time. That's an issue, if you will, that the city created on on remand by changing the zoning of the property to follow Toma County's online map. uh whether it is preserved or not the first time around it's based on a new fact that didn't exist in the first appeal. Uh otherwise we think we have been very clear on our appeal. The city has to take account of its past decisions. It didn't do that. The city has to take account of its own zoning map. It chose to ignore that and adopted something with a different shape. The past decision took the area of the two zones down actually to an exact number of square feet. record 1444. The city doesn't deal with that. Uh for all of those reasons, Luba should remand this decision to the city to adopt findings that reflect the facts as they are and not as the city would like them to be. Thank you. >> Thank you. That will conclude oral argument. The statutory due date for our decision in this appeal is January 26th. will ask that the parties agree to an extension so that we issue our opinion no later than February 9th. Is that okay with these parties?