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OA 2025-027 Miller v. City of Maupin
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=qlBjSQroq-M). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good morning. If council could come on screen if you have that ability, please. All right. Good morning. This is the time set for oral argument in luba number 2025-027, Miller versus the city of Min. I'm board chair Zamoodio. Present today are also board members Basham and Wilson. Uh please mute your audio when you're not speaking. Thank you. I see that you've already done that. I'm not aware of any pending motions um in this appeal. We do have a challenge to the jurisdiction of the board in the response brief which we will deal with in our final decision. Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes for your argument and may reserve up to five minutes for rebuttal, which is time to respond to the city's arguments. Did you want to save any time for rebuttal? >> Yes, I think I'd like to reserve four minutes. >> Okay. Uh I will keep track of time here and ask you also keep track of your own time and I'll let you know when you get into that rebuttal time. And then after you present your argument, the city will have an opportunity to present their argument and uh that will be the totality of the oral argument. So with that, petitioner, if you could please state your name for the record and begin. >> Sure. My name is Karen Miller and um I'd first like to thank the board for the opportunity to present and participate in this case and to apologize for the oversightes I've made that have caused you and your staff additional work. Uh here's just a brief history and overview. Petitioners appealing planning commission's decision to approve an after-the-act flood plane development permit for an RV park and adjacent subdivision located in the FEMA floodway of the Dishutes River and city council's upholding of that decision under local appeal. The case is a result of several years of land use actions related to these developments. Staff reports and recommendations provided by contract um contracted planners to this city decision makers were inaccurate and misleading. Planning commission did not fully understand their own local codes nor the state requirements and did not question those staff reports and recommendations. Decisions were made without required public hearings and development proceeded without the proper review and the associated flood plane development permit. The permit applicant was a city council member during this time and at the time of permit approval. Six months into construction and six months after respondent received direction and offers of assistance from Deanna Wright of the Department of Land Conservation and Development to establish the permit and review process for these developments. Respondent finally acknowledged the permit. Respondent had never processed a flood plane development permit. Although there is residential, private commercial, and city-owned commercial development in the FEMA floodway, planning commission had no experience or training in flood plane management, even though they are appointed as the uh administrator of the local flood plane ordinance. This authority includes granting or denying development permit applications prior to commencement of development in accordance with the title provisions. After multiple denials that a permit was required and that the land was even in the floodway, the same contracted city planner established a permit template which they provided to Mr. Miles without the knowledge, review or input of the planning commission. The completed application template was then provided to planning commission by the planner who recommended approval of the permit even though the information on the permit was incorrect and only one of the many supplemental requirements were included. requirements of MMC14 were not followed. The subject permit was approved administratively with no comment and no public hearing. Upon local appeal, the city council upheld the planning commission's decision. Of first concern is the lack of notification and public hearing requirement for planning commission's two meetings to review and approve the after the fact permit as required by OS 1977. >> [snorts] >> Approval of the permit was clearly a land use decision as defined by OS 197015. By establishing a flood hazard overlay district, Muffin's land use code MMC18 mandates compliance with the [snorts] requirements of the city's ordinance relating to flood areas in addition to requirements of the appropriate zone as specified in MMC18. In this case, the zone is RC recreation commercial. Although respondent ignored the requirements of OS 1977 797 and local code by approving the initial RV park plans in 2022 without a public hearing. They eventually acknowledged the permit requirement in June 2024 after earlier stating multiple times that it was not required for either development and after construction activities including installation of underground utilities for both developments were essentially complete. Basically, a respondent admitted their error in not requiring the permit initially and then denied any opportunity for public input just as they did in 2022. Respondents brief states that flood plane permit is ministerial in nature and is unrelated to any specific use of land. This is confusing and incorrect as the permit application itself as an extension of MMC14 requires specific identification of the development to include site plans and elevations, location of field placement, dimensions of proposed structures, location of facilities among many other requirements. However, none of these supplemental requirements were provided with the permit application. Of second and related concern is a lack of compliance with OS227, city planning and zoning. >> Just interrupt you for a moment. What land use regulation are you arguing as applied in the challenge decision? >> Uh MMC14. >> Okay. So, in your view, MMC 14 is a land use regulations defined by statute. Yes. >> Um the second concern relates to RS227 city planning and zoning. Like RS 197 797, RS227 requires public hearing for land use decisions and permit applications. It also requires that approval or denial of a discretionary permit application be related to the standards and criteria of the development ordinance and to the city's comprehensive plan. Respondent provided no decision document, no written findings or statements at all, let alone any that relate to the uh development ordinance or to the comprehensive plan. Had respondent complied with the provisions of this statute that do allow approval of the flood flood plane development permit without a public hearing. Review requirements and notifications were still required and the local appeal would have been uh denovo. It was misleading for the respondant to ask the petitioner to indicate the type of hearing they preferred. The statute dictates a denovo hearing with presentation of testimony, arguments, and evidence as would have been allowed with a hearing and not limited to the specific issues raised in the appeal. Instead, respondents limited respondent limited council's review of the permit approval to only those specific items noted on petitioner's written appeal of eight months prior and ignoring petitioners oral testimony. petitioners and other appellants rights were prejudiced by not allowing arguments, evidence and testimony related to the issue. A third concern is respondents determination of MMC 2.10.120 as the directive for local for the local appeal pro proceeding. This is the generic appeal citation for actions the planning actions of the planning commission at hearings. There was no hearing held for the flood plane permit review and approval. In addition, the three requirements for council's appeal review as cited here are number one, transcript of original hearing, number two, written findings of the planning commission, and three, the action taken by the planning commission. Two of these items don't exist. Respondent did not prepare a transcript and one was not requested from Zoom. [snorts] Alternately, meeting minutes could easily have been provided to the council, but respondent says they weren't. There are no written findings of the planning commission supporting this decision. The only action is a signature on the last page of the permit application and even this was not provided to council as confirmed by the respondent and is not part of the record. It was submitted by petitioner in the petition for review as as the required initial decision document. As council did not review the three requirements of this citation, their determination to uphold the permit approval under this directive is baseless and their findings are invalid. A fourth concern and related to the third concern respondent did not allow did not follow MMC 14 which prescribes an appeal process and required reviews for decisions specifically rated related to flood plane development. None of these required reviews were performed with no review or relation to the comprehensive plan. Petitioner and fellow appellants were expecting an appropriately thorough review after the non-public participation and essential non-review of planning commission. Petitioners and appellants rights were prejudiced by not holding the appropriate review and not allowing any public comments whatsoever during the review. The fifth concern is planning commission's approval and council's upholding of that approval without substantiating evidence of compliance to MMC14. The permit application itself is an extension of MMC14, a land use regulation as defined in OS1 197.015. The permit is required by local, state, and federal law to be approved prior to commencement of development. The permit was approved 6 months after commencement when development was substantially complete. Excavation and fill for underground utilities was done. Completion of the application itself by the developer was intentionally misleading, incorrect, and incomplete. As noted in the petition for review, this again was an effort to avoid a proper and thorough review. The developer and the contracted planner knew of the intentional misstatements and omissions as noted on the June 18th, 2024 staff report in the record. The petition for review notes the errors of the permit application itself in addition to other failures to comply with requirements of MMC14 regarding the water course alteration and review of other required permits. Both planning commission and city council failed to verify the most basic of information um which was the identification of land and land owners. Had planning commission reviewed only those two requirements along with the required site plans that were not provided, they would have seen that the final development did not match the plans they initially approved and that land transfers would be required for the two developments to match the final plans. Instead of planning commission performing a thorough review of the application and requirements or even a cursory review, respondents and contracted planner basically told the planning commission to approve the permit and they did. It appears that no review by the planning commission was facilitated because respondent withheld training and resources that would have allowed them to appropriately perform their reviews and duties related to flood plane management. And you're going into your rebuttal time. You're welcome to continue or you can reserve your time. >> I'm done. Thank you. >> Okay. Any questions from the board? >> No. All right. Uh thank you. You'll have your four minutes for rebuttal and we will turn to the attorney for the city for your argument. >> Good morning. Elise Kepki on behalf of respondent city of Mppen. Um, I'd like to begin by clarifying what's actually at issue before this board today because much of petitioner's briefing and argument [clears throat] has focused on the history of the development of the RV park. But the decision on appeal is not a development application for the RV park. The permanent issue is a flood plane development permit that authorized limited flood plane work uh specifically grading with no net fill. There was no specific development or building proposal include included with the application. It was a permit specifically for cut and fill activities. Despite what petitioner has argued today, the only decision before Luba is that city's council res city council's resolution of the petitioner's local appeal of that flood plane permit. The council's role did not include speculating about potential errors the planning commission might have made, but it was to review the specific errors that petitioner actually raised and to apply the city's code in resolving those issues. Arguments she could have made below but did not are outside the scope of that inquiry and are not appropriate before this board. As the party seeking review, petitioner carries the burden of demonstrating first that Luba has jurisdiction over this appeal and second that she preserved her arguments for review and she has done neither. So on the issue of jurisdiction, petitioner must establish that the challenge decision was a land use decision either because it implements statewide planning goals, a comprehensive plan provision or a land use regulation. And the petitioner did not really address this in her initial petition. She is now arguing that title 14 is a land use regulation. But the city disagrees. The applicable code provision that was applied is MMC14.10.120 and it does not meet the statutory definition of a land use regulation under OS 197.015 because it is not a zoning ordinance. It is not a land division ordinance and it does not implement the city's comprehensive plan. Mopin's development code is held entirely in title 18 which explicitly states that its purpose is to implement the city's comprehensive plan. Well, Title 14, by contrast, is just a technical safety ordinance um adopted to implement FEMA standards and mitigate flood hazards. Its stated purpose is simply to promote public health and safety, not to regulate land use or implement plan policies. And again, I'd highlight that language in uh title 18. The city knows how to make a a land use regulation implement the comprehensive plan if it desires to. It clearly did not intend title 14 to be a land use regulation. Um we've heard petitioner from today. We've heard from petitioner today that uh title 14 is a land use regulation because uh title 18 contains a flood hazard overlay, but nothing in that flood hazard overlay was triggered on review. Um turning to the text of that language, um the flood hazard district overlay is for building and structures hereafter erected. Um land enlarged, moved, and land hereafter used in the flood hazard district. Again, the scope of this permit application was just for fill and grading activities. There was no specific use of the land tied to this permit application that the city council was required to consider and therefore it was not implementing a land use regulation. [clears throat] Um as this board has previously held the critical inquiry is whether there's a clear connection between the ordinance and the implementation of a specific goal or plan provision and an indirect reference and an overlay um is not specific and not clear enough of a connection to tie the flood plane permit approval criteria to the city's comprehensive plan. Um therefore petitioner has not uh established her burden that Luba has jurisdiction and we would argue that the appeal should be dismissed on that basis alone. Um even if the board were to find that the permit review provision is a land use decision. Uh the city also argues that the decision on appeal falls squarely within the ministerial exception under OS 197.015. Uh under that applicable code the planning commission has no authority to exercise legal discretion or policy judgment. The ordinance sets out four objective requirements that an applica applicant must submit. Uh those are elevation data, flood proofing elevation, a professional engineer certification, and the description of any water course alteration to the extent that there is one. So the city's role under that provision is really limited to verifying that those items were submitted. And provision three expressly directs the city to rely on professional engineer certifications rather than making any technical determination itself. Once a qualified engineer provides that certification and the city's engineer concurs, the city's role is complete and the application must be approved as the city found um and city council's approval of um its resolution of petitioners local appeal. In other words, the ordinance does not give the city any authority to weigh competing evidence, impose conditions of approval, or substitute its own judgment for that of licensed third party engineers. It is a process of pure techn technical verification, not interpretation. And to be very clear, the application on review here again involved no specific development proposal, no variance application. They were only looking at those four factors and confirming compliance with those technical criteria. Um, so against that backdrop, if there are no questions, I will move into each assignment of error as they all fail on the merits regardless of the jurisdictional issues. And I'll address assignments of error one and two together because they're substantively similar um and they suffer from the same defect and that petitioner failed to preserve them below. As you know, Luba can only review arguments that were raised below with enough specificity to give the local decision maker an opportunity to respond. Petitioners now arguing at Luba for the first time that the city was required to follow specific statutory procedures under OS 197 and 227, that the permit cannot be processed administratively, that she was entitled to a denovo hearing on appeal. But none of those issues were raised during the local proceedings and the record reflects no argument implicit or explicit that could have possibly put the city on notice of any of these statutory obligations. Petitioner's preservation statement cites her local appeal generically. Um, but we've narrowed it down to a single comment which seems to be quote, "Had the planning commission provided a reasonable form for public comments, they may have better understood their duties and responsibilities as flood plan administrators." That statement cannot be understood to notify the city that the permit review was a land use decision, uh that the permit review was discretionary, that a hearing was legally required, or that any statute was violated. And that's because that is not what petitioner was arguing below. Not only did she not site a single statute, she now claims the city violated, she didn't use any of the operative terms in any of those statutes. Not even a passing reference to public hearing, land use decision, discretion, quasi judicial, denovo review, absolutely nothing that would put the city on notice of her argument so that it could address them at the city council level or prevent unfair surprise here at Luba. Her approach would have required the city council to manufacture arguments for her and then address them at the city council level. Um, and that's entirely inconsistent with the purpose of preservation. This board has also held that general opposition is not sufficient to establish a preservation of error and her statement about public comment is no more than general opposition to this the city's uh selected procedure. It require preservation requires identifying the specific legal error so that the city can correct it then and there before it reaches this board and petitioners did not even give the city that opportunity. Um so both assignments of one and two fail for lack of preservation but to the extent that Luba considers them I'll briefly touch on their merits. Um, as the first assignment, um, the city rests on its arguments today and in a brief regarding the ministerial nature of the flood plane permit review process. I'd only add that if the board does conclude that title 14 is a land use regulation, then OS 197.829 applies. And under that statute, Luba must affirm the city's interpretation of its flood plane ordinance unless it's contrary to state law or inconsistent with the code's text, purpose, or underlying policy. The city's interpreted that provision as establishing an administrative ministerial process that does not require quasi judicial review. Um, and that interpretation is pretty cleanly rooted in the text of the code, which sets forth again these four objective technical requirements that require no policy judgment. It's entirely reasonable that the city staff would deem this to require only an administrative review consistent with a ministerial exception. And as the court of appeals stated in Zipple versus Josephine County, the board must affirm the city's interpretation of its own code unless it is quote so wrong as to be beyond a colorable defense. Petitioner has not shown or argued today how the city's interpretation violates any statute or policy, nor how it's so untethered from the rest of the code as to be legally indefensible. She has stated her preference for a different procedure, but that is not enough to defeat the difference under OS 197.829. Um and moving to her arguments today invoking OS uh chapter 227. The jurisdictional hook there is 227.160 and that statute explicitly limits its scope to discretionary permits. As we've established this was a ministerial review and therefore that statute is not applicable here. Um finally for [clears throat] both assignments of error I'd add that the applicable standard of review requires petitioner to demonstrate prejudice to a substantial right. She has not done so. Um, as you know, the substantial rights contemplated by that statute are not the right to have the appeal resolved with your desired outcome. Um, but they're the right to an adequate opportunity to prepare and submit one's case, which petitioner has received. Uh, she received a full local appeal, uh, where she was able to identify any arguments and have the city council resolve each and every one of them individually, and she explicitly waved her right to a denovo hearing when given the choice, she selected an on the record hearing between the two. um nor has she identified any evidence that she was prevented from presenting or how the alleged outcome of the city council's decision would have been any different if they had followed her desired procedure. Um accordingly, her second assignment of error should be dismissed and then I'll briefly respond to what she's argued in her third assignment of error regarding MMC 2.10.120. Um petitioners reading rest on a misunderstanding of that statute. The code provides quote the council shall hold a hearing on the appealed action as set forth in the transcript written findings and the action taken. So in other words, the city council's review is limited to the planning commission's decision as reflected in the record below to the extent it's available and they cannot consider matters outside the record. But nothing in that code explicitly requires council members to review any one document, let alone minutes. That word does not appear in the statute. And so under standard rules of construction, petitioner cannot write in a word that she wishes with was there and then claim error based on its absence. Um, also petitioner has alleged today that council's review was useless because they didn't receive um or they didn't review the permit application itself, but that's just not true. If you look at the record, um the [clears throat] permit along with all the other materials reviewed by city council is in the record and it was available to city council for review. um petitioner has not offered any evidence to demonstrate what city council did or didn't specifically look at in reaching their decision and that argument is meritless. And then again um petitioner again has not demonstrated any prejudice to a substantial right here. She was provided her full 15 minutes for testimony. If there was something in the permit application itself or in the minutes that she felt was critical to the resolution of her appeal, she could have identified it then and she didn't. she hasn't identified it here today and accordingly this assignment of air should be dismissed. Addressing her arguments on the fourth um again I think this rests on a misreading of the mob and municipal code. She's argued that the city council was required to apply 11 substantive variance criteria to a flood plane permit appeal. Um but on its face this reading does not make sense. The provision at issue designates the city council as an appeal board with authority for two distinct actions. One is appeals and the second is variance applications. And I think her argument seems to conflate those two rules. Under subsection 1D, the code states, quote, in passing upon such applications, the city council shall consider end quote and enumerates 11 specific factors, but under the mop and municipal code, an individual does not apply for an appeal. They submit an appeal form such as the one petitioner submitted in this appeal. Um, and by contrast, a party seeking a variance submits a variance permit application. So the term applications in this provision can only be understood to apply to variance applications and that reading is further underscored by the rest of the code structure as subsection 1E incorporates these 11 factors by reference and gives the council the authority to attach conditions to a variance application based on those factors. And then subsection 2 explicitly governs conditions for variances and requires that subsection 1D factors be considered when granting conditions for variances. Accordingly, the city did not improperly construe its law as petitioner alleges and that assignment of error should be denied. Um, and then briefly, um, I see that I'm running close on time here. Assignment of error 5 is a substantial, uh, evidence challenge. I think we've briefed this pretty extensively. The city council's decision explains exactly what the city relied on. um professional engineer certifications, FEMA based modeling, the city engineers concurrence, all of it was reasonable to reach the decision that they reached and petitioner has not argued here um how you know didn't offer any competing testimony, didn't offer how a reasonable person in the city council's position position could not have reached that conclusion um and does not allege otherwise. So um if there are no further questions, I think the city will rest on >> No question from the board for the city. Thank you. So, we will return to petitioner for rebuttal and you'll have four minutes for your rebuttal. Petitioner, please go ahead. >> Great. Thank you. Um, I identified in my reply brief and um provided uh documentation to show that MMC14 is actually a land use uh regulation as defined by RS 197. Uh the the specific language in the um mop code 1830.10 regarding the overlay district specifically says buildings and structures hereafter structurally altered land uh shall comply with the requirements of all city ordinances relating to flood areas in addition to the requirements for that zone. and that is identifying mop and code um 14 as an implementation of mopin code 18 and that clearly um defines it as a land Um just a little background on my on the city's communication with me which was very lacking about what what the definition of on the record and denovo meant. Uh when I asked the city they indicated that on the record meant any documents official documents so far that nothing new could be added. Um, at that time I did not understand that on the record meant only the documents that the city decided to present to council on the appeal. That was very very confusing, not clear and I think intentionally done so. Um, and the full 15 minutes that was mentioned for my testimony on the appeal was totally unexpected. The notice I received from the city for the appeal, when the appeal would be heard, specifically said that no testimony will be heard. I took that to mean that they would take my written my written appeal and do it themselves, that they would um that that would be the presentation of the appeal. I understood that to mean that I was not allowed to testify. There's nothing in mop and code that identifies uh uh local appeal proceedings. I don't know that they've had any or many. Um there's nothing in the code that identifies that. And there was no communication from the city to me on how the process worked and what would be expected and what would happen. So I'm just putting that out there. Um I think I'm done. Thank you. >> Thank you. uh both parties for your argument today. That will conclude oral argument. The statutory due date for our decision in this appeal is January 19th. Uh we'll ask that the parties agree to an extension so that we issue our opinion by February 2nd. Is that okay with these parties? >> Thank you. Okay. Well, thank you and uh