437 P.3d 314
Or. Ct. App.2019Background
- Goodpasture Island PUD is a five-phase multifamily/mixed‑use project; phases 1–4 were built and phase 5 sought final approval in 2017.
- Condition 3 (imposed in 2010, amended in 2011) set a trip cap—287 AM / 321 PM peak‑hour vehicle trips—measured using the ITE Trip Generation Manual and specifying ITE code 220 for unrestricted apartments; it also required a current traffic study before Phase 5.
- The 2009 TIA (basis for the original trip cap) used ITE codes 220 (Apartments), 252 (Senior Adult Housing), and 814 (Specialty Commercial). Phase 4 as built included 132 assisted‑living beds (ITE code 254), not the senior housing assumed in 2009. 254 yields higher trip rates per bed than 252.
- Goodpasture’s Phase 5 application used actual counts for phases 1–4 plus ITE code 220 for proposed apartments; its engineer concluded up to 193 units in Phase 5 would still comply with the cap (Goodpasture proposed 186 units).
- Willamette objected that calculations must use ITE code 254 (Assisted Living) for the Phase 4 units actually built, which would reduce permissible Phase 5 units to 167 and thus violate Condition 3.
- The city hearings officer and LUBA upheld the city’s approach (using the 2009 TIA codes as the baseline); on appeal Willamette raised two errors before this court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LUBA erred by allowing the trip‑cap calculation to use ITE codes from the 2009 TIA rather than the ITE codes for uses actually permitted and built in Phase 4 (law‑of‑the‑case claim) | Willamette: prior LUBA and Court of Appeals rulings required allocating trips by actual permitted/built uses, so law of the case barred using 2009 TIA codes | Goodpasture: Willamette failed to preserve a law‑of‑the‑case argument below; on merits Goodpasture argued the baseline codes may be used | Court: Willamette’s law‑of‑the‑case claim was unpreserved; court declined to reach merits and rejected the assignment of error |
| Whether substantial evidence supported LUBA’s conclusion that Phase 5 complies with Condition 3 when using the contested ITE codes | Willamette: using the correct code (254) for Phase 4 shows Phase 5 exceeds the trip cap; therefore LUBA lacked substantial evidence | Goodpasture: reliance on the 2009 baseline codes and updated counts produced evidence supporting compliance | Court: This assignment depended on the unpreserved first claim; court rejected it and did not reverse on substantial‑evidence grounds |
Key Cases Cited
- State v. Pratt, 316 Or. 561 (1993) (describes law‑of‑the‑case principle)
- Willamette Oaks, LLC v. City of Eugene, 248 Or.App. 212 (2012) (affirming earlier LUBA decision and discussing monitoring/enforcement of trip cap at building permit stage)
- Gould v. Deschutes County, 272 Or.App. 666 (2015) (prior LUBA interpretive rulings can be law of the case governing later proceedings)
- Barnes v. City of Hillsboro, 239 Or.App. 73 (2010) (preservation rules apply to administrative/LUBA proceedings)
- VanSpeybroeck v. Tillamook County Camden Inns, LLC, 221 Or.App. 677 (2009) (preservation requirement for administrative review)
- Hayes Oyster Co. v. Dulcich, 199 Or.App. 43 (2004) (limits on law‑of‑the‑case—only essential portions of prior opinions are binding)
- Holbrook v. Precision Helicopters, Inc., 162 Or.App. 538 (1999) (appellate court not required to comb record for preservation)
- Citizens for Responsibility v. Lane County, 218 Or.App. 339 (2008) (standard of review for LUBA substantial‑evidence decisions)