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OA 2026-029 Schirmer Consulting, LLC v. City of Eugene
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=O6lgM8UXMFg). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good morning. Still a little bit of the morning left here. This is the time set for oral argument in Luba number 2026-029, Shermer Consulting versus the City of Eugene. I'm Board Chair Smudio. Board Members Wilson and Basham are also present. Uh please keep your audio muted when you're not speaking. That will help with our recording. And this oral argument is being recorded and live streamed. Pending matters that we have are the city's motion to dismiss, responses to that motion, and a motion to strike, and a motion to take evidence that are pending. Um we are planning to suspend this appeal so that we can resolve that jurisdictional issue, recognizing that there's some time for the city to respond to those motions that we've recently received, and so we will be issuing an order uh suspending this appeal so that we can resolve that jurisdictional issue, which we may do together with the merits, depending on how we um land with that. So, just wanted to let you know, expect that order coming out. Um 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? >> 5 minutes, please. >> Okay. Uh I will keep track of time here and ask that you keep track of your own time, also. And uh respondent, you will have a total of 15 minutes for your response, also. So, with that, petitioner, um please state your name for the record and begin. >> Thank you, uh members of the board. I'm Bill Kloos on behalf of the petitioner. It's always nice to be back. Um this um started out as a humble little single-issue uh case that then got consumed in a big dust-up over jurisdiction. Um um things are never as Never as simple as you think they're going to be. Uh as for the uh jurisdictional point, um I I kind of did things backwards uh inadvertently. I think the most significant filing I made on jurisdiction was my supplemental. Short short supplemental um um memo on jurisdiction, wherein I just looked at language that was on the face of the city's form for filing for a lot validation. And we all know lot validations are those miracles where you start with the benefit of the statute, you start with an illegal lot, and you come out the back end of the pipe with a uh a validated legal lot. And uh the point is you have to go into the pipe. You have to go into that process with an illegal lot. And the city's form for filing for a lot validation says on its one of first of three pages, "By the way, folks, uh you have to start with an illegal lot, and one of the ways of proving up on an illegal lot is you can go get a legal lot verification from the city, and come out of that process with a determination that you don't have a legal lot. And that qualifies you to then file for one of our lot validations. Now, the city's position, if I understand it correctly, in the um jurisdictional uh briefing, is that the lot validation process at the city um uh is a does result in a land use decision, >> [clears throat] >> but the legal lot verification process at the city does not result in a land use decision. It is just an informal discussion between friendly staff and a curious property owner, which is then reduced to a memo, which looks a lot like a land use decision. Um so, the city's drawn that distinction. This This is saying these are really two different things. You know, legal lot verification, not a land use decision, get out of here. You don't belong in the loop. Uh lot validation, now that's a lot land use decision. The point I make in my supplemental memo is which is actually shorter than my discussion here. [laughter] The point I make in my supplemental memo is that there's no difference between um the legal lot that verification process and documents and the um lot validation process and documents. Neither one of those processes is explicitly provided for in the code. And yet um they both have application forms, they both require fees, they both result in uh decisions by the city. Call it a memo, call it a decision. Um and uh you know, both of them apply the law. Um and so our point is that in the supplemental memo is that right there on the face of the lot validation form, the city is basically conceding that the legal lot verification process and the thing you get at the end of that process, whether it's call it a memo, um call it a spear, call it an arrow, the thing you get at the end of that process uh is something that you can take into as a starting point uh of the um um lot validation process. That makes it a land use decision. Now, uh the bulk of our briefing on the jurisdictional matter, all the bulk all basically all of our evidence, 90% of our evidence that we submitted in support of jurisdiction consists of documentation on three other applications, three other decisions. Um one was a property line adjustment, one was a um uh standard partition, and the third was a middle housing land division. Now, each of those applications, uh as we document the code, requires you have a legal lot to start with. Um none of those action those decisions that we've given you uh partition, property line adjustment, or uh uh middle housing land division, none of those actual decisions addresses the question of whether or not the applicant is starting with a uh legal lot. And the reason for that is logically um we've also given you for each of those few little mini case studies a copy of the legal lot verification that the property owner >> Those legal lot verif- Sorry, Mr. Close. Were those legal lot verifications that you put in the motion to take out? Were those also in the record for those three cases? I couldn't quite tell. >> No. Uh, in one case um I believe it was the property line adjustment. Could be wrong. Um, the um hard copy of the city's uh, property line adjustment decision references at the top on the front page other related decisions. And that listing of other related decisions identifies the legal lot verification associated with that property that came before. The other two >> on that. >> Pardon? >> It's clear that it's relying on that legal lot verification. >> Well, I don't know that. It's It's listing it as a um You really can't tell. Uh, it's listing the legal lot verification as a decision with a number that's related. Now, my point uh, in the kind of extensive briefing on that was that if the city's making just a decision on a partition or a property line adjustment or middle housing land division and the code says all y'all got to start with a legal lot. Um, and it And we've cited the the the the code that says that in each instance. Um, and then you look at the actual decision, the legal [clears throat] lot verif- uh, the um uh, partition property line adjustment or middle housing land division. You look at the decision and it doesn't address the standard. It doesn't make a decision internally as to whether or not these folks started with a legal lot. Um, then >> And it's kind of weird. Both of those that's not actually an approval criterion. If you look at the approval criteria, like one of them it's in the purpose statement, the other one is in the application submittal requirement. So, does that does that change anything? I don't think it changes a darn thing. I mean, uh you you I mean, you can't get through wickets. Uh you can't the city is not whether whether the uh requirement for having a legal lot is stated in the purpose statement or an information requirement or a standard, you the the the gist of the code is you can't get a partition unless you start with a legal lot. You can't get a middle housing land division unless you start with a legal lot. That's it. Um good luck trying. So, I I don't think we want to put uh formatting over substance. You have to start with uh you have to be in good stead with a legal lot status in order to to start the process. And if the city is not if the city is correct that all these legal lot verifications with all the forms and the fees and the formalities really just result in an informal discussion, documentation of informal discussion with the city staff, then you would expect the city in conjunction with making the property line adjustment approval or um um partition would be making a finding that yes, this is a legal lot, we can go further. And they're they're not saying that anywhere. So, what? Um either they're relying on the legal lot verification, which came before, that's the efficient way to do it, or they're just making all these decisions with with a giant glaring hole in each one of them because they are not making the the uh legal lot finding um from the get-go. Um that's about what I can say on that. So, um, so that's, um, a lot on jurisdiction. My I I looked at I reviewed the merits of our brief on this. I I have so little to add to the, um, merits of the of the issue here. Um, I guess I would, um, uh, just pass along to you a question that my client passed on to me. >> [snorts] >> Uh, when all this got started, he said to me, he said, he said, "So, Bill." He said, he says, he says, "If the city's taking the position that they're taking here, then what if what if I buy a fully platted undeveloped subdivision with 20 lots in it that are all still in the same ownership, you know, a plat that was recorded in the mid-50s or something. I buy the whole thing. And the the conveyance to me, the deed conveying that entire undeveloped subdivision to me, could look exactly like the conveyance language that the city has applied here. You know, um, it could just and and just plug in the 20 lots here instead of the north 110 ft of lots 12 and 13 and blah blah blah blah. The same conveyance language could be could be used. And if the city's right in the context of my application now, then the city's position would be that all 20 of those lots get consolidated with that deed and the And I said, "That's a really good question." I said, "I'm sure the city will jump at the opportunity to answer that during the oral argument." So, I leave that question on the table. That's about it for my, uh, opening statement. Thank you. >> So, to make sure I understand your argument, um, under ORS 92.017, if if the if the 19 with 1959 deed, if it had I think you're you're arguing that it could have merged if it had wanted to. Like if it'd been very specific and said, "We started with three legal lots. We've only got one now. Woe would be to any man or woman who says otherwise." That would have merged them and 92.017 wouldn't undo that. If I understand what you're saying is like the 1959 deed did not do that. >> The 1959 deed did not not do that. >> And so so if the deed is under our case law, if the deed is silent about merger basically, the default position is it does not merge them. Is that our assumption? >> That's right. >> Okay. No further questions from the board. Uh, we will turn to the city for their argument. >> Good morning. May it please the board, Lauren Summers representing the city of Eugene. Um, the city does intend to file a response and objections to petitioner's motion to strike and motion to take evidence not in the record related to jurisdiction. So, um, just to let you know that will be coming. Um, and I'll hit a couple of petitioner's points before I launch into the meat of my argument, but um, in terms of petitioner's uh, discussion of the supplemental memo or supplemental response to the city's motion to dismiss and focus on the the language on the lot validation form. First, I'd like to point out that the lot validation form is currently outside the record. That's part of petitioner's motion to take evidence. Um, and but then I would just draw the board's attention to the the language in the lot validation, um, form application form requires evidence of an illegal lot, um, because you can't validate a lot under ORS 92176 unless it is not a lawfully established unit of land. That is part of the statutory requirements. Um the legal lot verification can act as evidence that a lot was not legally established, but so could a lot of other things, deed records, other things. in the motion petitioner um kind of makes a lot of the fact that there's no process or criteria for a lot validation in the Eugene Code just as there's no process or criteria for a legal lot verification, but I would point the board to you the process and criteria in the statute for a lot validation. The city hasn't incorporated those into the Eugene Code, but they do exist. Um and the ORS 97 or I'm sorry, 92176 provides that a decision on a lot validation is uh a permit decision as defined in ORS 227.160. Compare that to the legal lot verification process which does not There's no process in statute, there's no process in the city code, there's no approval criteria in statute or the city code, and um there's no appeal process for a lot verification decisions. They are They are different. Um Similarly when petitioner points to those three kind of sets of legal lot verifications and land use decisions that are also outside the record and are part of petitioner's motion to take evidence not in the record. Um again, the petitioner is correct that the land use decisions, the partition decision, the um middle housing land division, etc. do require that the subject property be a legal lot as defined in the Eugene Code. But again, a legal lot verification is one way, one kind of set of evidence to show that the subject property is a legal lot, but you could also submit a subdivision plat or a partition plat or a lot validation. It's not a requirement to have a legal lot verification prior to a land use decision. And applicant doesn't point or I'm sorry, petitioner doesn't point to any evident any evidence or any board decisions that indicate that evidence submitted in support of a land use application automatically becomes a land use application. Um Okay. So, >> I'll jump in quick. So, your motion, you you say that this is just a preliminary decision. To me, it sort of comes down to whether this is a final decision or not. >> Yeah. >> And you you cite the the Davis I think Davis case. >> Yes. >> And and then you say this is just like that, basically. >> Yeah. >> The Davis case was pretty clear from the language that it was definitely preliminary. And then you say this is like this, and that's what and Mr. Mr. Claus is moving to strike. Is there Is there anything you can point to besides you're telling us that it's preliminary, like anything in the code or your process or anything that would make this like Davis? >> [snorts] >> Sure. Thank you for that question. So, it is the city's position that this is exactly like Davis, except for the fact that the decision in Davis did include language on the face of the decision that said, "Hey, this is a preliminary decision." Um but every other aspect of Davis is reflected in the in what's happening here, in the process here. Um and indeed actually in Davis, the county specifically identified the legal lot verification as a {quote} land use application, which the city does not. Um But what the uh board in Davis looked at were several things. Um that the county code did not contain any standards for evaluation of a legal lot verification. The city code doesn't either. The county code The only thing the county code contained was a definition of a legal lot, just like the city code. Um the county code did not contain a process for making final binding evaluations in terms of the legality of a lot, nor does the city code. Um and the board held in Davis that the legal lot verification approves nothing. That it was just a review of land records to determine whether those records indicate that the lot was legally created. The city's process is the same in all material respects except that express kind of preliminary language. But it's the verification it just simply isn't a final land use decision. There are no approval criteria. There's no process. There's no opportunity for appeal. It's not It It is a staff review of records related to a particular piece of property to determine whether that property meets the definition of legal lot in the Eugene code. >> So it's almost a glorified pre-app for your purposes. >> Yeah, I think the city would take that position. Yes. Um >> Is there a uh city code process for a lot validation? I think your motion um sites to the statute. Is there a Does the code also contain a lot validation? >> No, the city has not incorporated the statutory requirements into the code. Um the statute itself provides that a city or county may approve an application to validate a unit of land that was created by sale that did not comply with the applicable criteria for creation of a unit of land if the unit of land is not a lawfully established unit of land and could have complied with the applicable criteria when the unit of land was sold. Um and then >> not apply if if there wasn't if there's not a assertion that um that was you're not trying to validate what otherwise would be an illegal lot or something that was not lawfully established, but you're trying to determine how many lots you have. Your your position is there's just no process for that. There's no formal >> That's correct other than as part of a formal land use application process. So, you come in for a middle housing land division or a partition or subdivision that requires that the subject property to begin with is a legal lot. And staff says we don't think it is as part of that land use decision, that certainly would be appealable. Or if staff says we do think it is and as part of that land use decision someone else >> Um in terms of Mr. Closson's question from his client about, "Well, what if I bought a an undeveloped subdivision um today today um and would the city just assume that all of you know, if I own the entire subdivision, I own all the lots in the subdivision, would the city just assume that it's one legal lot?" The answer is no because because of ORS 92.017, which took effect in 1985. So, from 1985 onward 92.017 says that a legally created lot stays a legally created lot unless the lot lines are vacated or there's a future uh um another uh or it's further divided via another subdivision or partition. Um but what we're talking about is land transfers that all happened prior to 1985. the uh remember Wilson, as you pointed out the um operative transfer that the city is focusing on is in 1959. So, it was both prior to 1962, which is when the local partition and subdivision regulations were adopted and deed transfers could still function um and prior to 1985 significantly prior to 1985. So, ORS 92.017 did not exist at the time and didn't operate to kind of freeze in time It It appears to be petitioner's position that anytime a lot was created by a deed it's frozen in time regardless of whether that happened prior to or post 1985. It's the city's position that ORS 92.017 is not retrospective in effect and petitioner hasn't pointed to any evidence or text or context or legislative history that would indicate that it was intended to be retrospective. So, the 1959 deed transfer operated to create a single lot and that same lot has been >> So, getting back to Mr. Close's question, so say I think the original lots here were created like in the like pre-World War I, right? And say so say they'd all just stayed together miraculously for 50 years or 40 years, and then they got transferred 1959 with a deed just like this that just described you know, the boundaries and didn't say what the city seems to be consistent the city would say, "Nope, you just got one lot now." Am I missing something now? >> No, I think that's that's right if it was transferred in 1959, but I understood Mr. Close's question to be if it was transferred today. Um and that would be a different story because of ORS 92.017. >> In terms of the [sighs] substance of the appeal, um well I guess we've already talked about that. Um Yeah, I think that's those are the points that the city was really hoping to make. So, unless the board has any further questions that I can answer, um the board would ask the city to or I mean the city would ask the board to uh grant the city's motion to dismiss or if the board does find it has jurisdiction to affirm the city's decision. Thank you. >> So, Mr. Close's position is that if uh the deed is silent to merger, the default position is that it doesn't merge. Do you A disagree with that or B think the deed is not silent as to merger? >> In this case I think the context of the deed indicates that those lots were intended to be consolidated the way that they the various deed transfers happened. the deed transfers were kind of a functional equivalent of a property line adjustment that it was the same owner buying and consolidating a piece of property. And then when that was consolidated, it continued to be transferred as the same piece of property using the same legal description in the future. Um it it is true that the legal descriptions refer back to the original lots. Um and this is speculation, but I assume it's because it was easy um and So yes, in this case because of the external context, it's the city's position that um those lots did merge. >> Okay. And then last question, um if we do agree with petitioner that that it's a final it's a land use decision and that the lots didn't merge, [cough and clears throat] what should our disposition be? Do we remand? Do we reverse? Do we order you to free lots? And I'll ask petitioner this too, but what would what >> So I believe petitioner is asking for a reversal and remand with direction to the city to say, "Hey, this is three you know, it's the city always would prefer remand over reversal, but in this case um you know, if the board completely agrees with petitioner that this is a a decision the board has jurisdiction over and the city got it wrong I'm not I'm not really sure what other findings the city could make if the board is in agreement that in fact it should be three lots instead of one. It seems to be a pretty um just a dichotomy here one way or the other. Um but the city does include in its briefing um in the event of a reversal the reason that petitioner would not be entitled to attorney fees. >> Okay, thank you. >> [clears throat] >> Okay, uh we are at time there for the city. So, we will return uh to Mr. Close for rebuttal and you have uh I think two and a half minutes for your rebuttal. Go ahead. Oh, no, three and a half minutes, sorry. >> [clears throat] >> You're still muted, sir. Uh Counsel Close, you're still muted. I think we missed something funny also. So, if you could come off mute and share [laughter] with us what you said, please. >> I just I'm sorry, I have my my microphone off. It's probably just as well. I just wonder where the time goes when you're having a good such a good time. Uh there's no mention in our brief of attorney's fees. That that's only in the city's brief. Um Uh referee Wilson got it right. Our my question about merger of the vacant subdivision and single ownership, you know, relates back to pre 85 or you know, pre 62. It relates back to 59 when uh the city says my client's property got merged. Um uh >> [clears throat] >> the and you put your finger on it and he says, "Yeah, it's all it all goes away." Um I I just want you all to appreciate too that and I get get a little bit of heartburn every time I say this. I was the attorney that lost Davis. I mean, how how's that >> [laughter] >> How's that for an uh an item for my memorial service? That was very disappointing. But, I understand it. Yeah, I mean, there it is big bold letters in the bottom of that legal lot determination that says, "Hey, this is preliminary. Go apply for something if you want a final decision." We don't have that here. Um I I I guess I uh not to belabor the point, but there are standards to apply here. The definition of legal lot boils down to a standard. You know, you need to look at the deeds and figure out what they say. That's pretty standardish standardly. Um uh And there there there is no um to go back to the question of is there a process in the code for lot validation? There's not. And yeah, sure there's one in the statute, but um I'm not sure the statute language is particularly relevant to whether uh the code uh honors uh a process or enough of a process or you know, everything but a formal process to create a land use decision. This is really about the um code. It's not about the statute. And when you just look at the code's treatment of legal lot verification and lot validation, those things are treated like uh similes, twins in the in the city's code. Um I think that's So, really about it. Um thank you very much. >> I would like to reiterate board member Wilson's question about the proper disposition. Give us your best argument. What we should do. >> Our best argument is uh it really boils down to a question of law applying statute and uh we can do that uh as well as the city and um let's be efficient about it. Uh and I I appreciate the city not wanting to have >> So, I would would translate to that you're asking for a reversal. >> That's right. >> [laughter] >> Yeah, I think we're pretty clear as somewhere in our briefing that that's exactly what we want. So, I think we're the city and I and I are together on that. >> Okay. Uh no further questions from the board. Thank you. That will conclude oral argument. The statutory due date for our decision this appeal is July 30th. Oh, I'm don't need to say any of that because I already said we're going to suspend this case. So, uh look for that order and uh we will look for the response that the city has indicated that they're intending to um file with us. So, thank you. >> it's due this week. Thursday. ish