Document text
Oral Argument 2025-026 Morin et al v. City of Seaside
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=riVzRZPHdDI). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
So good morning. This is the time set for oral argument in luba number 2025-026 versus the city of side. I am board chairs Moodio. Board member Wilson is also present. Board member Basham is not present and will not be participating in final decision in this appeal. Um parties please mute your audio when you're not speaking. and that helps with our recording quality. And I'm not aware of any pending motions or matters in this appeal. Is there anything the >> No, ma'am. Sure. >> Thank you. Um oral argument is a total of 30 minutes. Petitioner, you have a total of 15 minutes. May reserve up to five minutes for rebuttal. Would you like to reserve any time? And if so, how much? >> Uh five minutes, please. >> Okay. And I will keep track of time here and also ask that you keep track of your own time. And just to note the clock on the screen is not keeping exact time and uh intervenor will have a total of 15 minutes for their response. So with that petitioner please state your name for >> Good morning. For the record my name is Zach McGee and I represent petitioners Le and Sandy Morren. Uh this case involves a tenative approval of a 15 lot subdivision in the city of Seaside and a variance to allow an overlength culde-sac to serve as a site's sole access. Uh however, the application was void under OS 2278 months before the city made its decision because the applicant had been notified of a missing alternate su sewer plan and failed to provide the plan or notice that it would would not be provided within 181 days of filing the application. In addition, the city improperly deferred approval of the applicant's alternate sewer plan, an alternate storm water plan to appoint after tenative plan approval without the required finding of feasibility. Uh failed to require the applicant to prepare an erosion control plan or hazard mitigation plan despite the requirements for the same in both the zoning code and city subdivision standards. Failed to require a street connection between the subject property and forest drive despite plane connection in the plat of Vista Ridge. and improperly granted a variance to the applicant to permit an overlength culde-sac based on the applicant's design preference. Returning to the first assignment, the city's error in approving a void application is jurisdictional and warrants reversal of the decision. O RS227178 provides that where a local government provides an applicant with notice of incomplete land use application, the application becomes void on the 181st day after submission if the applicant has not submitted either all of the missing information, some of the missing information with notice that no other missing information will be provided or written notice that none of the missing information will be provided. In this case, the applicant was notified of the missing information in February of 2024, but took none of the required steps. Instead, submitted some of the missing information, but refused to provide an alternate sewer plan that had been requested and never advised the city that no further information would be submitted. As a result, the application became void on August 27th, 2024, the 181st day after the submission of the application. As the application was void on that date, the city aired by later approving the void application. >> So, Mr. Mickey, what what I'm a little confused exactly what happened with the how they processed this this application. Um, when did the 120day clock start running? >> I'm sorry. >> When did the 120day clock start running for the city to make a decision on this? Well, in this case, the city actually um started processing the application or deemed the application uh complete in November of 2024, which is several months after the 181st day. >> So, there were no because I'm looking at that, you cited that in the record. I think it's in the staff report to the city council. Um there were no like extensions before that that So, the clock really didn't start running until November. >> That's correct. And in this case, um, with regard to missing information, there's no there's no real option to extend that time frame, uh, for the submission of the missing information. You either put put it in within 180 days or it's you're done, >> right? Yeah. No, I wasn't suggesting that. I was wondering if maybe the 120day clock had been extended a few times and they hadn't mentioned that in the staff report, but it sounds like that's not the case. >> That's not the case. They considered, I think, November 13th to be the >> Okay. So, but the but the city was sort of working on the application right before November or did they not really start processing it till November? >> I don't believe there were any kind of hearing notices or anything like that that went out prior to that point. So, I think that that was the point at which the the application got thrown. >> Okay. Thank you. Uh turning to the second assignment of error, the applicant's failure to provide an alternate sewer plan also substantively impacted the application uh because the applicant failed to demonstrate that its proposed sanitary sewer connection was feasible. Uh the city's subdivision and land partitioning ordinances require subdivisions to be connected to the city's sewer system subject to capacity limitations. In this case, the applicant proposed to connect a se to a section of the city sanitary sewer that has no capacity to receive additional sanitary flows due to due to an over capacity pump station on a pump station. Uh city engineer determined that it was not in the public interest to allow the plan connection and required an alternate plan and the applicant flatly refused. Instead of denying the application, the city attempted to to defer compliance with the criteria by adopting condition two, which required the applicant to develop an alternate sewer sewage plan after tenative approval. However, since there was no preliminary finding and no basis for finding of feasibility, uh that condition cannot be a substitute for the required finding of compliance. Moreover, since the city's condition allows the discretionary evaluation of the alternate alternate plan to take place outside the process, it is an improper deferral under RE and remand is warranted on that basis. Uh the same is true with regard to the sew uh storm sewer for the subject property. Again the um city determined that the uh applicants propose storm sewer is now sufficient for proposal that the proposes to discharge the water from the houses to the street but didn't provide a required detailed storm sewer plan for conveyance of the the flows thereafter. Again, the city tries to address this issue by opposing a condition, which is condition three um to require the applicant to provide the required study after the tenative approval process, but doesn't make a baseline finding a feasibility and it doesn't um provide the same participatory rights and deferred process later. Uh it's also an improper deferral and a Uh turning to the third assignment, city also aired by approving a subdivision of a large unstable land mass without the required grading and erosion control plan or hazard mitigation plan. Uh city zoning code requires um uh these kinds of plans, hazard mitigation plan and grading and erosion control plan for subdivisions on slopes in excess of 15%. Um it's undisputed that the subject property exceeds that 15% slope. Um as [clears throat] the excuse me as the applicant doesn't meet the zone zoning code requirements, the tenative plan could not be approved. Um the applicant did provide a geo geological hazard analysis. The same wasn't sufficient to meet the minimum requirements for hazard mitigation plan. And again there was just a refusal to provide the erosion control plan. Um as the applicant's geotechnical study was insufficient to meet the minimum requirements for hazard mitigation plan and there was no erosion control plan should also be denied on that basis. >> Um regarding the the the geotech stuff and the grading plan it's reading the brief it's almost like y'all are talking about different codes and so if I understand uh intervenor they're saying that they don't have to do that at this stage and you're saying they do. So, can you explain to me why they are required to file both of the the HMP and the the grading and erosion control plan at this stage rather than a later stage? uh because there's an express requirement um in both the zoning code and subdivision uh code that says you need to write the hazard mitigation plan and the erosion control plan at the tenative phase because we're going to be conditioning the tenative phase on the recommendations in those plans and the improvements need to be developed before the final plat approval. And so um those require requirements are pretty clearly spelled out in the zoning ordinance itself and also in the uh um the uh subdivision land partitioning ordinance section 10 which basically says well actually which says um uh hazard mitigation plan needs to take place at the tenative level um where it's applicable. I uh I also had a hard time following because the party's arguments are so varied on this issue. Did the city make an express interpretation that those things were not required or are we only looking at what intervenor argues is an implied interpretation because looks like we're definitely going to have to look at if we get to these assignments of error what the code requires. So what did the city do with that? the the city actually doesn't make an express interpretation of any of the zoning ordinance requirements just not in there. So there's no basis for an implied interpretation uh with regard to that. >> Okay. So your position, your counterposition is there's not even an implied interpretation that these provisions don't apply at the tenative stage. >> That that's correct. >> Thank you. Um the proposed layout of the subdivision also violates the development plan of the subdivision as a whole by failing to provide a required street connection to Forest Drive. Uh the subdivision uh development area is track G in the larger Vista Ridge subdivision and the prior approval of that subdivision reserved an adjoining track E to provide a public road connection between track G and Forest Drive to the northeast. Uh section 33 of the city's subdivision and land partitioning ordinance states and I quote a land division whether by a subdivision creation of a street or partitioning shall conform to any development plans end quote. Uh the plat of Vista Ridge is a development plan and one which requires the applicant to at least stub out a street connection uh to Forest Drive at that location. as the applicant not only failed to provide this future connection but precluded the possibility of such a connection the city aired by approving the subdivision and finally with regard to the issue of a variance uh the city aired by approving an overlength culde-sac for hemlock court the applicant sole access road this issue is largely controlled by a prior luba case which is called petsowski I think >> and you're getting into your rebuttal time you're free to continue on but you can um do what you want with that. >> Just briefly, um, we cite in the brief Pscowski versus Clamoth County. We believe that controls the issue of the variance. In in essence, a variance is only, uh, appropriate where it's where it's required and where it's a choice. And in this case, the variance is very much the choice of the applicant. The applicant can develop the subdivision without the variance and without any impact. Thank you. Just real quick, you you you cited the case talking about how it's, you know, there's stringent requirements for variances, but do does the uh the city gets more deference on that since they're using since the city council gets foreigner on that are they bound by those really stringent requirements for variances or can they interpret it less stringently? city uses the traditional stringent um uh variance requirements in this code and there's no interpretation which which would suggest that the conditions are any less stringently applied. >> Okay. Thank you. >> Thank you. >> Thank you. And we'll turn to intervenor for argument. Thank you. >> Uh thank you chair Zoodio. Uh my name is Dean Alderman Alt RM. I'm appearing here as council for the intervenor uh Sunset Ridge LLC which is the applicant below. Um assignments of error one and two overlap to a great degree that the a petitioner's timeliness argument is based on their belief that the applicant didn't submit sewer and water plans. In order to prevail on that argument, they have to show four things as a chain. The first thing is that the city code requires the applicant to submit sewer plans with the application. They cite to no pro to don't provision that requires that. All they cite to is a memorandum from the city planner. That is not the same thing as a criterion. City planners can't adopt criteria. The second step is that the city has to identify the plans as a missing item. This one I will agree the city planner did identify the sewer and water sewer plans as a missing item in the incomplete list letter in March. The third step is that the applicant had to not have submitted plans within the 180 days. There they failed. The applicant's plan was a little different. know was let's fix the leaks in the existing sanitary sewer system which will provide the additional capacity to handle the sanitary sewage from this project. In any case, because the city's code doesn't say that having sewer capacity is a criterion, it doesn't matter. It may matter later on at the development stage. It's not a criterion for approving subdivisions. The fourth step is even if the planning director had the authority to impose the criterion. >> I' hate to interrupt you while you're on flow of your four steps. I imagine there's more than four steps, but thinking about the differences here of what the parties believe that the code requires. What I hear you saying is at the tenative stage, all that is required is showing that there can be a physical connection without there being any need to look into capacity. Is that what you're saying? >> That is essentially correct that the code isn't phrased actually in terms of saying that it is a criterion. It simply says if a sewer is available, the applicant needs to connect to it. And that's all the code says. And the facts here were that the sewer is not available at a particular pump station and that there's some infrastructure improvements that need to happen in order to allow capacity for this particular PUD. >> Kind of the the the facts are that a a physical sewer connection is available at the low end of the property. All of the sewage can easily go downhill and it is a reasonably steep hill. down is is gravity is the law can go down there. The pipes have the capacity to convey the sewer up to the point of the pump station that takes the sewage underneath the river and to the west side of the river. It is that pump station off the property that lacks capacity and that's what led the city engineer I think engineer to write his memo saying please don't allow any more development in this area. That brings up a moratorum question I may get to later, but that's what led the city engineer to that. It's not a standard from the code. >> Okay. Your position is what the code requires is to say if there is city sewer, the PD connect to it. >> Yes. Yes. That's all that's all the code says at the stage of a subdivision application. That standard may come in when somebody applies to build a house on one of the lots, but it doesn't come in at the stage of the subdivision. The fourth step, even if the city engineer or the city planner could impose the criteria, could impose an additional requirement that the applicant submit plans that the code doesn't require. Is did the city council wave that requirement? the city council can overrule the planning director. The code only says the city may require the plans. It doesn't say the city must require the plans. In this case, the planning commission and the city council both reviewed the application. Neither one required the applicant to submit the plans and therefore what the planning director may have said in a letter drops out of the picture. It is not a requirement. The city the city waved it all together. It's not in the code. The city I shouldn't say waved. I should say the city overruled the planning director. >> And I imagine you're going here eventually, but I'd like to go get there sooner. The first assignment of error and the petitioner's interpretation of what the statute requires. Um, your position as I understand it is, well, the facts as I understand them are that the interviewer respondent submitted some of the identified material identified incompleteness letter and said, "We think this is sufficient. This is adequate." And in your view, that's enough to satisfy the requirement to provide written notice that no more information will be provided. Am I summarizing that accurately or not? reasonably. Our our position is we actually submitted all of the evidence that was required, just that what we submitted for alternate sewer and water plans, not a code requirement, was different in form than what the city planner had wanted and that the city council didn't require it. As far as timeliness, we think our position is consistent with Luba's case law on completeness. Uh I think I get to it about pages 11, 12, and 13 of my brief. uh Smith versus City of Gearhart. Uh this board held that an applicant who said, "I plan to submit no additional documentation except coaster construction bid estimate from a building permit. My application is considered complete." That that was enough to cause the application to be complete. Um in Steuart versus Salem, uh the plaintiff relator wrote a letter that said, "Please consider my application complete by operation of law." that was held to be enough to be complete. >> If Oh, I'm sorry. Go ahead. >> No, go ahead. You might ask the same question I had in mind, but if not, I'll ask it after you. Go ahead. >> Thank you. Um, so I understand your argument that you think it became complete on July 25th. Um, and the first question is the first part of this question is you said that you sent an email to that effect saying this should be complete now, but I understand petition argue that that email is not in the record. And secondly, even if you thought it should be deemed complete there, is that what the city did? Because this the staff report to the city council says it wasn't deemed complete until November and they didn't start the 120day clock then. And finally, the last part to the question is you your brief says that it was deemed it was complete on July 25th and that the city adopted a finding to that effect. And I didn't where is that finding? >> Okay. Sorry, that was a compound question. >> Okay, that I didn't know. That I didn't know and didn't look at. I don't think I misstated that. But I'll tell you why. Whatever the date is, it isn't November. Because the statute says the application is deemed complete whenever the applicant submits the last bit of information. We didn't submit anything We didn't submit anything close to November 25th. The fact that the city may get around to writing letter that says we believe your application is complete. The date of the city's letter doesn't matter. What matters is the date of the submission. And July 25th is when we said we've submitted everything. We think we believe our application is complete. Uh and there is some process that is in the record from that point. So that that's when we believe we were complete. We don't think the city can or or the petitioners can say the city didn't recognize you as being complete until a date which was long after you submitted the last bit of information. That's not how the statute reads. The statute is based on when the applicant sends it in, not on when the city responds to it. >> So theoretically, you could have mandamus them at some point then, huh? >> Uh yes, actually. >> Okay. >> Uh but I mean I like Luba better than the court of appeals. >> Okay. All right. Thank you. Thank you for answering that compound question. >> Let's see. So that's that's completeness and I think that covers most or maybe all of your question is is embodied in that. >> Um I want to talk briefly about what I think has been perhaps a source of of investigation for the board. The difference between the hazard management plan and the grading and erosion control plan. Uh the code to me is pretty clear that an applicant for a subdivision approval should submit an hazard a hazard management plan if the slopes are greater than 15%. This applicant submitted that. Our brief explains where the plan is, what it's identified, how it deals with all of the elements that are supposed to be dealt with in a plan. The grading erosion control plan under the city's code comes in later when the applicant actually wants to start shoving dirt around to grade to excavate and so forth. And how we know that is from one of the code sections we cited which is 4.202 sub4 which says that the grading plan is reviewed not by the planning commission not by the city council but by the building department. That these aren't the people the people that the petitioners are appealing from aren't even the people at the city who are supposed to be looking at it. There's nothing they get to do with it. It gets reviewed by a completely different department. That's how the responsibilities assigned in the code. It's reviewed by the people who give out the permits for us to actually dig trenches and move dirt and build streets, not by the people who approve the plan of the subdivision. Uh on the issue of the culde-sac, which wraps up, I think the fourth and fifth assignments of error, first is it would be hard for the city to require us to build a street through a piece of property that the applicant doesn't own and that the city doesn't own either. Uh that that's a it's it's a legal impossibility for us to do that. B the petitioners have made a big thing about the fact that this is a a hazardous landslide mass. And the record is clear that to connect the road down to that stub requires going down a 20% slope which is way outside the standard for fire engines and fire protection. The city could reasonably make a policy decision. We're going to let you have an overlength culde-sac because that's a lot better than building a 20% road straight down a hill to end 20 ft away from an actual street. Uh third is there's no the houses still end up in the same place just the last part of it becomes a private driveway instead of a public street. There's no actual shortening of distance. All it would do to say make the culde-sac farther up the hill and run private driveways to the houses is to make it harder to provide fire protection for the houses. The city council could certainly have made a very reasonable policy decision to say we want a road that will support a fire engine to get as close as possible to the houses and the subdivision. Uh they made a decent decision. It's supported by evidence in the record uh and ask you to affirm the city council and deny the appeal. >> Thank you. Any further questions for a moment? Okay. Thank you for your argument. We will return to petitioner for rebuttal and you'll have two minutes for your rebuttal. >> Okay. Briefly, I'm just going to touch on a couple of things that I think would be helpful to know. One is there's an express requirement uh for capacity uh in section 43 subsection 5. Um yeah, all subdivisions and partitions within the city of women shall be connected to the sewer system where available and subject to capacity limitations. So that that's the requirement there. Um there was uh no alternate street plan that was submitted uh during the period when the record was held open. Um there was an additional study that was submitted with the um May uh submission, but it was submitted with a letter that said at the same time uh and we're also going to provide additional information. There's no letter in the record from the applicant that says um and we're not going to submit anything else. And so that that just simply never happened. Um, turning to the HMP and grading erosion control plan requirements, there's an express requirement in I sub2 that says that the erosion control plan uh shall be submitted in conjunction with the HMP. That didn't happen here. As a matter of fact, the applicant's geotechnical hazard report that was provided um uh uh actually says it's neither an erosion control plan nor is it a hazard man hazard mitigation plan. Um and then in terms of the legal impossibility argument, as we pointed out, uh we're not requiring the sub subdivider to try and punch a road through property he doesn't own. we can just stub out that street. Thank you. I think that's my time. >> That is Thank you for be Thank you for being mindful of your time and thank you to both parties for your argument today. That will conclude oral argument. The statutory due date for our decision in this appeal is February 18th and we'll ask that the parties agree to an extension so that we issue it by March 4th. Is that okay with these parties? >> No objection from petition. >> No objection from the intervenor. Thank you.