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Oral Argument 2025-088 JIPR, LLC v. City of Carlton
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=O4Kk_c4Y1Zw). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good morning. This is the time set for oral argument in luba number 2025-088 JIPR LLC versus the city of Carlton. I'm board chairs Moodio. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking. That will help with the recording. And uh in this matter we have a motion to take evidence and a motion to strike that are pending. We will resolve those in our final decision. And petitioners or petitioner, you have a total of 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> Yes, I'd like to reserve at least four minutes. Um but I guess if I am able to start stop my initial remarks earlier, then I would up take up to five minutes. >> Okay. So, uh, you want to reserve 5 minutes and then you might go into that rebuttal time. Is that what I understand? Okay, sounds good. I will keep track of time here and also ask that you keep track on your own. The clock that's on the screen is just for general reference. It's not keeping exact time. And respondent and interviewer, you have a total of 15 minutes. Have you discussed how you'll share your time? >> Yes. uh we'll be splitting our time evenly, but we'll be each arguing uh each other's arguments uh essentially. So, if that makes sense. >> Okay. I'm sure it will as we proceed. Uh again, I'll ask you to keep track of your own time and I will look uh here as well. And so, with that, petitioner, please state your name for the record to begin. Uh, chair, members of the board, my name is Nick Roen and I have the honor of representing the petitioner JAPR LLC, um, who is the applicant below, uh, who, as you know, applied to develop a convenience store and fuel station and those land use applications were denied by the city of Carlton, which resulted in us filing the subject appeal. So, there's nine assignments of error in the petition for review, and I'm only going to focus on some of the items today. So, as far as today's takeaway and what I would impart, this case has some unique facts and there are some rare legal questions for teed up for the board to decide. Uh, the most consequential is the sixth assignment of error which relates to RS 1978510AB. which provides a remedy to an applicant when the local government's action was for the purposes of avoiding OS227178 the 120day requirement or the 120day as I will explain this case falls within the scope of that remedy because petitioner didn't have a true decision on the merits within the statutory timeline and was instead denied it substantial rights to a full and fair hearing because of concern with possible mandamus this in whole or part. I hope to spend most of my time discussing this, but that's not the only rare or unique item. So, kind of want to quickly run through some other important things before I can address that that analysis and some of those cases I cite in the petition. So, uh there were a variety of errors before both the planning commission and uh the city council. Uh errors before the planning commission included the failure to allow response rebuttal evidence including after an open record period and also after at least one exparte contact and site visit and a variety of other evidence outside the record. That's not necessarily rare. But what is rare however is that the city council refused the schedule denovo or evidentiary hearing to cure the errors which occurred before the planning commission and instead decided after an onrecord review where no new evidence was allowed >> council did uh the applicant request a novo hearing before the city council >> yes so both in writing we requested the opportunity to submit new evidence if um you know I mean I guess we basically said no harm no foul if you're going to approve approve it, that's fine. But, um, in the event that there's any question at all about the substance of the application, we explicitly requested the opportunity to sub submit evidence in a denovo hearing. >> That's both in a written appeal statement and then also there's a motion to take evidence that has emails with city staff prior to the hearing. And I cite to um various portions in the record where I say we're willing to wave the 120day. were willing um in order to put new evidence in the record if you guys find that there's an issue with the application, which again, it's kind of saying, you know, if you don't need to schedule another hearing if you're going to prove it on the record, again, the staff recommendation uh was to approve. Uh but if there was any question at all, which we also had a suspicion that the city was inclined to um deny it based on public pressure, we made clear that that would be legally impermissible unless there was a new hearing scheduled where evidence could be submitted, which is a nobo hearing under the Carlton city code and under >> Okay. And I understand, thank you for that answer. I understand the response briefs or at least one of the response briefs to say uh that petitioner the applicant would not wave the 120 days. And so that essentially justified the city council proceeding on an on there in an on there way. You're saying that the applicant did request a NOVO and offered to wave the 120 days to allow for a denovo hearing. >> Yes. And I think I explicitly put specific citations in the reply brief. Um, but even to the extent and and it's also in the petition, but even to the extent that that is their position, I would say that's an interesting argument to make that actually falls directly within the scope of what OS 1978510AB is intended to um to prevent, which is basically conditioning applicants their substantial rights to a full and fair hearing based on the 121day deadline. At the record, I think it's uh 87. That's exactly what we argue in our appeal statement that you can't compel an applicant to wave the 121 day. It's the city's responsibility to select a timeline compatible with OS 227178. Um but even here again as a practical matter because we just wanted to get this application approved. We were like at this point if that is the issue we will extend the 121 day tell us how much time you need to schedule denovo hearing submit evidence and I think those citations are in the reply brief if but they're it's in the record you know >> thank you uh one more question if we were to sustain one or multiple of your procedural assignments of error first of all what which gives you the most relief second of all what's your position on how we should proceed in terms of remedy and reaching any of the merits of the criteria. >> Uh my position is that I think there is clear procedural error um in that we weren't allowed rebuttal and response evidence um after the open record period um we were denied final written argument and under the unique facts of this case I think that did extend to the city council proceedings. Um the city knew that but they proceeded to have deliberations on October 22nd because of concern with mandamus. They said that expressly the Miller v. Multma County case shows that staff statements and recommendations are relevant evidence of intent of the local government. Um so I think that gets you procedural error. >> Okay. So, if we sustain that assignment of error for violating the statutory 7-day final argument uh allowance, would we then need to also address your arguments about bias and uh conflicts of interest or would we not address those things? >> Well, I guess so, so sorry. And just real quickly, um I guess my point is that the what grants us the most relief and I put it at the sixth assignment of error because I wanted it to be after you can read through the procedural errors, but it's RS 19783510AB, but the case law and I encourage you guys to, you know, and you will, but the Walmart um final opinion and the Walmart order and the so the Walmart v central point, if you read that opinion which discusses the the the intent of that statute. This is squarely within the merits. So, but there has to be and what hasn't happened in any other case until now is there has to be a uh deprivation of the petitioner substantial rights to full and fair hearing. So, you got to find one somewhere. I would say here it's the lack of response and rebuttal evidence after the open record period at a minimum. Also, you could argue the lack of final written argument. uh but that would give us a reversal of the city's decision uh in an approval with the uh conditions of approval that were proposed by staff and the applicant. I think it's there's a city of Salem case and that was when a city acted outside of the range of its discretion but you basically say okay we have to reverse it and approve and then we'll go back and you know the city can go back and find what conditions of approval or were uh you know suggested and recommended then that's what the city has to go back and do. So I would say you that would grant us the most relief is reversal on OS 19783510AB because the petitioner did not have a um its substantial rights were violated uh and it didn't have a full and fair case um and therefore it was not a decision on the merits. It was instead a proforma decision. Again, if you really read the nuances of the um uh the Walmart case, um that's what the board is looking for and what Walmart didn't allege in that case which prevented it from getting that relief. Uh in addition to, you know, later cases, Oregon pipeline in 2013, it's discussed and um Sirelli. Um, so you have to find the prejudice of the substantial right. Uh, and then assuming there's a situation that falls within the scope of the remedy or S197 83510AB, that would grant us the most relief. I think you should still go and um uh proceed to I think you the board could and should proceed to a bias analysis um because that would but I suppose it does not have to if it finds that there was a um substantial right which is prejudice that denied the applicant a full and fair hearing uh because of concern with um the 120day deadline which the Miller v. Multma County case says it doesn't need to be the primary purpose. It just needs to be in whole or part or consideration of the local government. That's in one of the footnotes. And then in the body of the opinion, in that case, Miller v. Mulnoma County uh the board did not grant relief because Luba found that the county commissioners um didn't even consider the 120 dead day at all as a matter of fact. Instead, they found they the board found that as a matter of fact, the board thought they were just taking a purely ministerial act and just memorializing what had already been done, which was uh an entering a mistakenly and innocently entering a non nunk pro tunk order based on a prior oral decision that is distinguished from the facts of this case. Um where again, this is not something that would become ubiquitous. So, it's not something that I think for policy purposes the board should be cautioned about granting relief on, but this is a rather rare case where there is a deprivation of the petitioner substantial rights to a full and fair hear hearing if nothing else on the lack of rebuttal and response because of concern with the 120day deadline in this policy matter. the entire the Oregon legislature wanted to make sure that applicants can have a full and fair hearing within that 120day deadline and you don't condition their right to a full and fair hearing um because of the 120day clock. It's the city's responsibility to make sure that they get the full and fair hearing within the 120day clock. The Walmart opinion discusses that a good faith approval is one on the merits which means a real decision which mean and it even says that means an adequate evidentiary record which would withstand appeal here >> you're going you're going into your rebuttal and you're welcome to but at this have about four minutes for your rebuttal. So just wanted to make you aware of that. >> Okay. I would just say quickly because just um you know there's obviously a lot to go through the the briefs and the reply have a lot there. I would say that um as it relates to bias, if you're not going to find a reversal because of the um application of the OS 19783510AB remedy, um you know, the bias, this is unique. This is Columbia Riverkeeper and Bots Marsh have a very narrow uh basis to allow for actual bias. I think that's um the case here. And with that, I will reserve the rest of my time for rebuttal. >> Okay. and you'll have about three and a half minutes for rebuttal unless there's questions from the board. Okay. Uh three and a half minutes for your rebuttal. And with that, we will turn to uh respondent or intervenor respondent, whoever wants to go first. Go ahead. >> Interviewer respondent. Um Andrew Monkey for intervening respondent Felix Madrid. I'd like to begin by talking about generally the framework for the first, second, third, and assignments of error. And it also includes the fifth and sixth assignments of error. But you know with respect to these procedural errors um alleged by petitioner these all have to do with and I want to refer Luba to the Pinnacle Alliance Group uh case but when there's an opportunity later in the proceedings or before the final decision maker to submit evidence during the denovo hearing um then that opportunity is adequate to ensure that the petitioner substantial rights to prepare and submit its case. How does that apply where there is no denovo hearing here? So in this case I I think it gets to the point that um uh your question earlier about uh the 120day clock and here it is it is true that the record shows that um the petitioner did ask for a denovo hearing but again the petitioner never authorized that denovo hearing by giving the city the uh waiver for the 120 day clock that it needed to actually have those proceedings. And so >> Kishner said during his argument that they did offer that they were willing to wave the 120 days. So you're is this a disputed fact here? >> Well, no. And I think I think what I want to say what I want to and and and petitions council did it again here is they're making a conditioned offer. They're saying for on a hypothetical event that they don't know the outcome of. So they're saying we'd be willing to grant uh this authorization uh if you feel that you need it, but otherwise we don't think it's necessary. We don't and and specifically the words here that are cited in the reply the made in the record and made actually before the final decision maker is um we would be willing to grant a period of time to hold the record open but then in the next breath council states we don't think that's required and again he says the applicant be would be willing to grant a waiver of the 120day rule essentially for the time period necessary to have another hearing but again that's not necessary under the circumstances because the criteria are met. So I don't think in other words this isn't a case in which similar to lower lake subcommittee um cited by the applicant in which the c the count the county or the city simply denied a request or declined a request for a denovo hearing. What happened here is petitioner made the request but they never took the additional steps needed to authorize um the time needed to have that hearing. And so this is more a case in which um petitioner had the opportunity but did not uh take the steps necessary to take that opportunity. Um and so these errors basically negate I think the first, second, third and also fifth and sixth assignments of error. um because because petitioner again was was always conditioning its its request or its willingness to provide authorization um on something that had not happened yet. >> So even if petitioner didn't authorize an extension 120day clock, why is it petitioner's responsibility to help the city out when they've for for whatever reason have taken longer than they're supposed to have taken? Well, I think in this case, um, the city's procedures, uh, G provided the option of a denovo hearing and, um, so again, that was, uh, based on petitioners, assignments of error in in a local appeal. And so it was petitioner's burden then to provide the the city the time it needed to address those assignments of error. it had the opportunity. And I I think I think that's the thing here is that the the case law shows that if if the opportunity is available and a petitioner does not take it, then there's no substantial prejudice here. um or there there's no prejudice to a substantial right because again I think I think what happened here is that the petitioner simply wanted to win uh and wanted to proceed with the development um and was not willing to put in uh more additional was not actually willing to put in additional time to um allow additional evidence to be submitted. And that brings me to the sixth assignment of air here and I I think this really turns on um two things. The first is preservation. Um which again respondents and I think intervenor respondent's point is that um petitioner did not raise the issue of a violation of RS227178. In other words, petitioner did not argue that the city was avoiding the requirements of the 120day rule or otherwise violating RS227178. Um, and it did not do that at any point in time before the city council. It did not do that before the planning commission. And it certainly did not exhaust that in its appeal statement. Um, and so for that reason, it's it's not a matter of of, you know, whether or not uh necessarily petitioner cited 1978 subsection 10AB, although it didn't. Um, it's it's also that it did not raise uh significantly the error. um that it is trying to remedy in these proceedings. Now um and I'll point out that you know the raise it or wave it rule applies to issues not specifically criteria. And so um even if there's an argument that somehow RS227178 wasn't a criterion or somehow did not need to have been assigned error, it's the issue was not raised uh below. And so for that reason, there's no opportunity to to raise those on appeal here. again, I think that petitioner had the opportunity to request and authorize a denovo hearing, but never specifically made that authorization. And I think what that would have looked like here is um petitioner just saying I will authorize an extension of a month so that we can have come back and have another hearing and do that and I make a motion to do that in in front of the the city council here um you know at the hearing and petitioner simply didn't do that. It only stated a willingness to potentially do that but it never affirmatively gave um the city council what it needed for that. Finally, I I do want to point out that the city my reading of Walmart is that um those the remedy provided uh in pardon me 197835 does not apply when the city issues a decision on the merits or makes what would otherwise be a good faith decision. This is not an instance of bad faith um denial uh of the opportunity for hearing. The city made an actual goodfaith decision on the merits and the record shows that simply put the the applicant failed to comply with the access spacing standards, failed to comply with the standards required to modify uh those access spacing standards and failed failed to comply with the off- streetet parking standards. And those are all new bases for denial that were included in this in the final decision makaker's decision. And so I do not believe that they were affected by any of the potential errors in the lower decision makers um decision. And I'm going into uh Mr. Yan Mlette's time. So I will stop it there and turn it over. >> Go ahead. Thank you. Uh madame chair uh board uh one of the uh prior questions related to which assignments of uh error the board should rule on and that brought in uh petitioner's fourth assignment of error relating to actual bias by councelor uh Terrell. Um it is a respondent's position that uh petitioner failed to preserve this uh issue for appeal during the city council hearing. Uh, councelor Terrell made multiple disclosures of uh, exparte um, excuse me, not really exparte contacts but outside statements um that may indicate bias against this particular kind of development. Uh, those disclosures were made on the record. Uh, councelor Terrell uh then explained again on the record that she understood the high bar that public officials are held to in making a decision on the merits of the case. Uh that they must afford um the applicant a impartial uh hearing and they must base that decision on the applicable criteria. Um after um all of the council members disclosures were made um uh in open room um with uh petitioner present uh an objection to any of the disclosure statements was uh requested. No objections were made. It was only when uh petitioners or applicants council realized that the council was going to deny the application, excuse me, that an objection was made uh raising concerns about councelor Terrell's bias. Uh the record um does not include sufficient evidence to prove actual bias or that councelor Terrell prejudged this case. Uh the discussion among the council, the final decision maker in this matter clearly showed that the decision was made based on the applicable criteria and the substantive merits uh of this. >> Do you have any case citations where we found a bias concern was waved when there were initial disclosures and the objection didn't come until later in the same hearing? I >> I do not have a citation for that, Madam uh related to the um bias matter depending on uh again it's relating to the uh prior question on requested relief and uh what happens after this hearing after the board makes its ruling. Uh there was an allegation in petitioner's fifth assignment of error that um one of the planning commissioners had an actual conflict of interest in this matter. Um uh the concern there relates to whether uh Commissioner Fernandez Madrid, the ex-spouse of Intervenor respondent Felix Madrid, who is an uh owns property adjacent to the development, um whether they were a relative under the applicable Oregon statutes, in order for an individual to be a relative when they are expouses, there must exist a legal support obligation. between the public official and the uh outside impacted party and specifically the statute says for that outside individual. Um uh petitioner has submitted a motion to take additional evidence relating to the prior uh dissolution proceedings between intervenor respondent and commissioner Fernandez Madrid. Um but the only evidence that a petitioner uh proposes to include indicate that there may be a support obligation from uh intervenor respondent to Commissioner Fernandez Madrid which is the opposite phrasing of the statute. It would need to be a legal obligation that Commissioner Fernandez Madrid held for intervenor respondent in order for them to qualify as relatives under the Oregon statutes for conflict of interest. Um, recusal would only be required if the parties were relatives and there was an actual conflict of interest. Uh in this uh case it is at best a potential conflict of interest that um should have been disclosed but it is our position that there is uh no disclosure was required because there is no conflict of interest. Uh so if this matter were to go um back in front of the planning commission um it would be the the respondent's argument that there is no conflict of interest that would require commissioner Fernandez from Madrid to not participate. in that hearing. Um the seventh, eighth, and ninth assignments of error uh relate specifically to the uh applicable decision criteria. Uh specifically uh the seventh assignment of error relates to the uh conditional use permit. Uh there were multiple uh specifically cited instances where uh the application uh at issue here did not meet the criteria um in the Carlton development code um relating to site size and dimensions that they must be suitable for the proposed use. um uh petitioner made arguments on the or made statements, excuse me, on the record um that uh they could only develop the property with two driveway accesses um which is not um allowed under Carlton's development code for this uh parcel. uh and therefore uh the site and size the site size and dimensions are inadequate for the proposed um development. Um and there were additional issues relating to the site design review um again relating to that driveway spacing standard and it was uh inappropriately requested to be modified under uh as a major modification of street uh standards under Carlton Development Code 17.64.05. 050. Um, so, uh, time is closing in. Uh, it is respondent's position that the petitioner's petition for review fails to allege that any substantive, uh, substantial rights were impaired based on the procedural irregularities um, at the lower hearings. Um, and the applicable criteria uh, support a denial. when there is adequate evidence on the record supporting the city's >> Thank you. Uh and thank you for being mindful of your time. We just got to 15 minutes. Appreciate that. Uh we'll return to petitioner for your rebuttal. Uh you have three and a half minutes for your rebuttal. Go ahead. And you're on mute, petitioners council. >> Uh thank you, board chair. Um, so yes, we dispute as a factual matter that we weren't willing or we did not offer a waiver the 121day deadline. We make citations to that point. Um, he does acknowledge we requested denovo hearing. Um and again even if his argument or even if as a matter of fact we didn't offer a waiver that kind of comes to the crux of our position which is you can't condition an applicant's uh substantial right to a full and fair hearing on a waiver of the 120day deadline or 227178 um says you can't we cited to that I think record 87 um in our appeal statement you just you can't do that and that's kind of the crux of the whole thing. So um and yes, our statements were conditional because we were stuck in an on record appeal hearing. So um we I mean we were in a position where we we were informing the city that in our view it would be legal error to deny the application if they didn't give us a denovo hearing or in request to submit um evidence um and and or they could approve it. Um but it would be legal error if they had substantive issues to to make the denial in that on record review. They were aware they could cure these procedural issues that we alleged, but they chose not to and they made a denial after the on record review. So that also goes to the um as it relates to preservation. Um issues are different than arguments. Um the board is aware of that. The issue that the OS 19783510AB remedy is intended to protect is an applicant statutory right to a full and fair hearing within the 120day deadline. It's intended to add teeth to the 120-day deadline. That's what Miller vultma county say and the Walmart cases and other subsequent cases. So the a bad faith denial means a denial and this is discussed in the Walmart uh final opinion. A bad faith denial, it's kind of interesting language, but a bad faith denial means a denial not on the merits and not on the merits means a denial which denied an applicant it substantial rights to a full and fair hearing. So we argued that issue below it was preserved. We didn't cite the remedy but that's not unusual because you know petitioners below or applicants below aren't talking about you know RS1978359C you know substantial evidence what have you. The substantive issue is that we were denied um a full and fair hearing with uh because of concern with the 120day deadline and in particular mandamus in whole or part which I think the respondent acknowledges that the uh mandamus was was a factor in the decision. So, uh, as it relates to, uh, councelor Terrell and and bias if if the board reaches that, um, assignment of error. Um, I I just as a factual matter, I disagree that her disclosures were adequate. Um, again, part of the issue that applicant had in this case is we didn't have enough time to review things. And so I guess the board has a policy question of, you know, are they going to require an applicant to um are you going to essentially reward um an inadequate disclosure because it's a lot different to say, you know, I signed a petition at some vague point in the past versus I signed a petition in opposition to this specific application um uh which uh you know opposed the application at this particular site. And in any event, um, we did, I guess by just stroke of luck, end up objecting anyways, which as a matter of preservation gave the city opportunity to cure and correct, which is the the policy intent behind preservation, giving them opportunity to correct the error before an appeal. So, um, and that go and then the city made a decision on a tainted record. Um, >> okay, we've, uh, we've exceeded your time now. So, let's look. >> Thank you, board chair. >> Yep. Thank you. Uh, that will conclude oral argument. The statutoary due date for our decision in this appeal is July 1st. We'll ask that the parties agree in advance that we issue our decision no later than July 22nd. Is that okay with these parties? >> Nods all around. Thank you. Uh and thank you for your arguments today. And that will conclude our oral argument. and