273 P.3d 219
Or. Ct. App.2012Background
- Willamette Oaks, LLC petitions LUBA to review an Eugene city decision approving modified tentative PUD, final PUD, and tentative subdivision for a five-parcel multi-family project by Goodpasture Partners, LLC.
- LUBA remanded the decision regarding some tentative PUD modifications for parcel four and the vehicle-trip cap, but affirmed others and affirmed the modified trip cap itself.
- The June 14, 2010 tentative PUD approval covered ~23 acres, including a four-story age-restricted apartment on parcel four with 125 units and associated infrastructure.
- Goodpasture’s July 2010 requested modifications included converting parcel four’s use to assisted living/memory care, reducing units to 111, reducing stories to three, altering driveway/parking/garbage/landscaping, and removing garages.
- Willamette challenged EC 9.8335(1)-(2) as misapplied, arguing the modifications were not consistent with original approval and produced more than insignificant changes; LUBA found inconsistency with original conditions and remanded the insignificance findings, while affirming the trip-cap modification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LUBA properly affirmed modifications as insignificant under EC 9.8335(2). | Willamette contends changes were not insignificant. | Goodpasture argues changes were within city discretion to deem insignificant. | affirmed the insignificance determinations. |
| Whether the final PUD/final subdivision approvals were improper due to reliance on modified tentative PUD conditions. | Willamette argues final approvals did not conform to tentative approvals. | Goodpasture asserts final approvals were consistent with modified tentative PUD. | Rejected; final approvals upheld subject to insignificance rulings. |
| Whether LUBA erred by remanding instead of reversing the city’s decisions on the modification; is such error preserved and plain. | Willamette preserved request for reversal in part; argues reversal required. | Goodpasture argues preservation failed; error not plain. | No preservation; no plain error; affirmed remand approach. |
| Whether the trip-cap modification and its enforcement/TPR deferral issues were correctly handled. | Willamette contests modification and potential deferral of TPR compliance. | City/Gopasture defend enforcement mechanism and non-deferment. | upheld as proper, with enforcement through building permits and potential additional analyses. |
Key Cases Cited
- Ailes v. Portland Meadows, Inc., 312 Or 376 (1991) (plain error review and standard for reversal/remand)
- Willamette Oaks, LLC v. City of Eugene, 245 Or App 47 (2011) (LUBA decisions on trip cap and insignificance (Willamette I))
- Gould v. Deschutes County, 216 Or App 150 (2007) (TPR deferral and Type II review principles)
- VanSpeybroeck v. Tillamook County, 221 Or App 677 (2008) (preservation and plain error standards in LUBA review)