Turner v. Washington County

689 P.2d 1318, 70 Or. App. 575
CourtCourt of Appeals of Oregon
DecidedOctober 31, 1984
Docket83-014; CA A29292
StatusPublished

This text of 689 P.2d 1318 (Turner v. Washington County) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turner v. Washington County, 689 P.2d 1318, 70 Or. App. 575 (Or. Ct. App. 1984).

Opinion

VAN HOOMISSEN, J.

Petitioners appeal from an order of the Land Use Board of Appeals that remanded to Washington County certain portions of a decision granting a conditional use permit for a nonresidential planned unit development on a 218-acre site owned by respondent Standard Insurance Company. ORS 197.850. LUBA’s order essentially upheld the county’s action. Petitioners make six assignments of error. We conclude that five of their assignments are moot and that their sixth assignment lacks merit. Therefore, we affirm.

The site, located in Washington County, is within the Metropolitan Portland Urban Growth Boundary. It was originally designated as “Urban Intermediate” under the county’s unacknowledged 1973 Comprehensive Framework Plan (CFP). It was planned for industrial use but was not open for immediate development. In 1981, the county adopted a local community plan for the area known as the 185th East/West Plan. It eliminated the “Urban Intermediate” designation as a planning tool. Instead, it formulated Growth Management Policies designed to tie urban growth to the provision of urban services. Under it, Standard’s property became industrial land open for immediate development.

In 1982, Standard applied for a permit to construct a nonresidential planned unit development on 218 of the 600 acres it owns in the area. Hearings were held by the County Planning Commission, and the Commission ultimately approved Standard’s development plan. Petitioners participated fully in those hearings, and they appealed to the county, which upheld the approval. Petitioners then appealed to LUBA, which affirmed the county in substance, but remanded for additional findings on some issues. LCDC approved those portions of LUBA’s order that involved statewide land use planning goals.

Petitioners did not seek a stay of the development process pending their appeal to this court, and the county has already held hearings and made findings on the issues remanded to it by LUBA. The county has approved those findings, thus permitting Standard to move beyond the conceptual phase of its development. Simultaneously, Washington County was formulating and later adopted a new Comprehensive Framework Plan. Petitioners participated [578]*578fully in that process. LCDC acknowledged the new CFP in September, 1983. Under it, the 1981 185th East/West Plan was “translated” into the language of the new CFP, as LCDC had requested. It became known as the Sunset West Community Plan. That plan reaffirmed designation of the 218 acres at issue here as industrial land open for immediate development. After the county’s action on LUBA’s remand in this case, Standard submitted a subdivision application for 68 acres of its 218-acre tract. That application was approved in December, 1983.

Petitioners contend that the notice issued by the county concerning the conditional use permit for a planned unit development was defective in various respects that denied the county jurisdiction to proceed and caused prejudice to petitioners. They argue that the notice was defective because (1) it was posted 9 days before the hearing instead of the 10 days required by the zoning ordinance; (2) it listed the parcel size at 600 acres instead of 218 acres for which application was initially made; and (3) it failed to state that a “minor deviation” from the provisions of the 185th East/West Plan was being sought. Petitioners argue that those defects violated provisions of the Community Development Ordinance and ORS 192.640(1). The Community Development Ordinance requires that notice include a “description of the subject property, reasonably calculated to give notice as to its actual location” and the “nature of the proposed action.” Under ORS 192.640(1), notice of a public meeting must be “reasonably calculated to give actual notice to interested persons” and must include a “list of the principal subjects anticipated to be considered at the meeting.”

The county gave notice of the request for a conditional use for a planned unit development on the Standard property by placing a notice in a newspaper, by posting notice in three conspicuous places near the property and by mailing notice to all property owners of record in the area. The fact that notice was posted one day late did not divest the county of jurisdiction. LUBA examined the Community Development Ordinance and correctly characterized the posting require[579]*579ment as procedural. It further found that petitioners suffered no prejudice as a result of the late posting.1 Some procedural matters, such as paying a filing fee or filing a petition for rehearing are explicitly jurisdictional. That is not true of the posting requirement. We would be reluctant to hold that a minor procedural defect could void a lengthy and complex procedure where, as here, no prejudice is shown. See McQuary v. Bel Air Convalescent Homes, Inc., 296 Or 653, 678 P2d 1222 (1984); Nyman v. City of Eugene, 286 Or 47, 593 P2d 515 (1979). We conclude that the notice issued apprised petitioners of the actual location of the property and the nature of the action under consideration and that that was sufficient on this record.

Petitioners also argue that the notice was defective because it identifies the 600-acre parcel rather than the 218 acres for which application was made. However, the planned unit development process required consideration of the entire 600-acre tract even though the proposed development was only for part of it. The notice stated that a “conditional use permit for a planned unit development” was at issue. That the notice did not state with precision everything that petitioners believed was relevant is not controlling. The notice alerted petitioners that a land use decision was being considered [580]*580concerning the subject property, and it included a telephone number to call for additional information. LUBA found that petitioners failed to demonstrate any prejudice from the alleged defect and we agree with that conclusion. The record shows that petitioners were represented by counsel and that they participated fully at every stage of the process. That was sufficient. We find no error. See ORS 197.850(9).

Petitioners make five other assignments. We conclude that all five are moot. Petitioners contend that LUBA erred in finding that two of the “conversion factors” to be considered under Goal 14 (Urbanization) in converting urbanizable land to urban land were met. The land has now been designated as urban under the county’s new CFP, which has been acknowledged by LCDC, and under the Sunset West Community Plan. Petitioners did not appeal LCDC’s acknowledgement order. Therefore, the assignment is moot. See Carmel Estates, Inc. v. LCDC, 51 Or App 435, 625 P2d 1367, rev den 291 Or 309 (1981); Multnomah County v. LCDC, 43 Or App 655, 603 P2d 1238 (1979); see also Warren v. Lane County, 297 Or 290, 295, 686 P2d 316 (1984).

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Related

Nyman v. City of Eugene
593 P.2d 515 (Oregon Supreme Court, 1979)
Carmel Estates, Inc. v. Land Conservation & Development Commission
625 P.2d 1367 (Court of Appeals of Oregon, 1981)
McQuary v. Bel Air Convalescent Home, Inc.
678 P.2d 1222 (Oregon Supreme Court, 1984)
Baker v. City of Milwaukie
533 P.2d 772 (Oregon Supreme Court, 1975)
Card v. Flegel
554 P.2d 596 (Court of Appeals of Oregon, 1976)
Warren v. Lane County
686 P.2d 316 (Oregon Supreme Court, 1984)
Multnomah County v. Land Conservation & Development Commission
603 P.2d 1238 (Court of Appeals of Oregon, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
689 P.2d 1318, 70 Or. App. 575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-washington-county-orctapp-1984.