Saige Timber, LLC v. Linn County ( 2024 )

No. 473 July 3, 2024 643
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
SAIGE TIMBER, LLC,
Petitioner,
v.
LINN COUNTY
and Casey A. Meadows,
Respondents.
Land Use Board of Appeals
2023075; A183594
Argued and submitted April 12, 2024.
Charles W. Woodward, IV, argued the cause and filed the
brief for petitioner.
Alan M. Sorem argued the cause for respondents. Also
on the brief were Saalfeld Griggs PC and Kevan McCulloch.
Before Shorr, Presiding Judge, Lagesen, Chief Judge,
and Pagán, Judge.
SHORR, P. J.
Affirmed.
644 Saige Timber, LLC v. Linn County
SHORR, P. J.
Petitioner Saige Timber, LLC seeks review of a
final opinion and order of the Land Use Board of Appeals
(LUBA), raising two assignments of error. In its first
assignment, petitioner contends that LUBA erred when it
concluded that any procedural error by respondent Linn
County did not prejudice petitioner’s substantial rights and,
therefore, provided no basis for LUBA to remand the case
to the county under ORS 197.835(9)(a)(B).1 In its second
assignment, petitioner contends that LUBA erred when it
failed to resolve whether a particular section of the Linn
County Code required that the Board of Commissioners
provide petitioner with a second de novo hearing. We reject
petitioner’s first assignment of error, concluding that LUBA
did not err in concluding that petitioner had not identified
how any procedural error, if any occurred, prejudiced peti-
tioner’s substantial rights. We also reject petitioner’s second
assignment of error, because LUBA did not need to reach
that issue based on its resolution of the first argument. As a
result, we affirm.
The facts are procedural and, although the par-
ties dispute how they are framed in the briefs, the parties
do not contest the facts themselves. We present only those
essential facts necessary to provide context for our opin-
ion. Intervenor-respondent Casey Meadows applied for two
property line adjustments affecting three units of land
that were zoned “Farm/Forest.” The Linn County planning
director approved the property line adjustments. Petitioner
then sought review of that decision through a public hear-
ing before the county planning commission. The planning
commission’s hearing was de novo with a full opportunity
for petitioner to present evidence, testimony, and argument
contesting the planning director’s decision. After that hear-
ing, the planning commission issued a written letter opinion
that affirmed the planning director’s decision and approved
the property line adjustments.
1
ORS 197.835(9)(a)(B) requires LUBA to reverse or remand the land use
decision under review if LUBA finds that the local government “[f]ailed to follow
the procedures applicable to the matter before it in a manner that prejudiced the
substantial rights of the petitioner[.]”
Nonprecedential Memo Op: 333 Or App 643 (2024) 645
Petitioner then appealed that decision to the county
board of commissioners (the county board). Under Linn
County Code (LCC) 921.220(C), the county board may affirm
a planning commission decision without further hearings
when a time limit for the county to act is “about to expire.”2
Applying that code provision and noting that a statutory
deadline for the county to act had expired, the county board
affirmed the planning commission’s decision approving the
property line adjustments without any further hearing.3
Petitioner then sought review before LUBA. It
argued, among other things, that the initial statutory time
limit of 150 days for the county to act on Meadows’ applica-
tion for a property line adjustment had already expired, and
was not “about to expire,” before the county board’s final deci-
sion. Petitioner essentially maintained that once that period
ran, the board could not affirm the planning commission
without a further hearing nor could it grant any extensions
to do so. Therefore, petitioner contended that LUBA should
remand the appeal to the county board to give petitioner a
second de novo hearing under LCC 921.220(C).
In response, respondent Linn County and intervenor-
respondent Meadows jointly contended that (1) petitioner
failed to establish that any “procedural error” requiring
reversal under ORS 197.835(9)(a)(B) occurred because peti-
tioner never had a right to a second de novo hearing under
the county code in the first instance; (2) even assuming that
there was a procedural error, petitioner had not demonstrated
that any error had “prejudiced the substantial rights of the
petitioner,” as required by ORS 197.835(9)(a)(B), because
petitioner received a full and fair de novo hearing before the
2
LCC 921.220(C) provides, in relevant part, that notwithstanding any other
code provision to the contrary, “if the [planning] Commission has made a decision
and a time limit is about to expire, the Board may enter an order affirming the
findings and conclusion of the [planning] Commission without conducting any
further hearings.”
3
ORS 215.427(1) provides that the governing body of a county or its designee
shall take final action on certain applications within 150 days after the applica-
tion is complete. ORS 215.427(5) provides that the county may approve an appli-
cant’s written request for extensions of up to an additional 215 days, bringing the
maximum potential time to 365 days. ORS 215.427 was amended as of January 1,
2024. Or Laws 2023, ch 223, § 3. Those amendments have no effect on the argu-
ments in this case.
646 Saige Timber, LLC v. Linn County
planning commission; and, regardless, (3) the county board
was permitted to expedite the hearing process even after the
initial 150-day period had run because the county had acted
within the overall time given by state law when accounting
for permissible extensions (up to a total of 365 days) and had
not waived its right to act within that extended time period.4
LUBA ended up resolving petitioner’s appeal based
on respondent’s second argument above—petitioner’s fail-
ure to demonstrate prejudice. Under ORS 197.835(9)(a)(B),
LUBA shall reverse a procedural error if that error “prej-
udiced the substantial rights of the petitioner.” LUBA con-
cluded that petitioner did not demonstrate that any claimed
procedural error prejudiced petitioner’s substantial rights
because petitioner had a full de novo hearing before the
county planning commission. In reaching its conclusion,
LUBA rejected petitioner’s limited argument on appeal,
“Petitioner argues that there is a distinction between the
board and the planning commission but does not explain
how any difference between those county decision mak-
ing bodies results in procedural prejudice to its substan-
tial right to prepare and submit its case and to a full and
fair hearing. Petitioner does not identify any argument or
evidence that it would have submitted to the board that it
was not permitted to submit to the planning commission,
other than arguments about how the planning commission
erred.”
LUBA did not end up resolving whether petitioner had a
right to a second de novo hearing under LCC 921.220(C),
because it did not need to reach that issue. As a result,
LUBA affirmed the county board’s decision.
On review to us, petitioner asserts two arguments
that LUBA erred in its decision. We review LUBA’s order
to determine if it is unlawful in substance or procedure.
ORS 197.850(9)(a). As noted, petitioner first assigns error
to LUBA’s conclusion that any error by the county board—
if any occurred—did not prejudice petitioner’s substantial
rights under ORS 197.835(9)(a)(B). We understand petitioner
to contend that LUBA’s order was unlawful in substance
because petitioner had established under ORS 197.835
4
See ORS 215.427(1), (2) (stating time limits).
Nonprecedential Memo Op: 333 Or App 643 (2024) 647
(9)(a)(B) that its substantial rights were prejudiced by the
county board’s failure to provide it with a second de novo hear-
ing following the planning commission’s de novo hearing.5
We reject that argument. Before LUBA, peti-
tioner simply maintained that its rights were prejudiced
by the county’s failure to provide a second de novo hearing
because petitioner could not bring its “concerns and argu-
ments against the [planning commission’s] [d]ecision” to the
board. Petitioner failed to explain how the lack of a hearing
caused prejudice. It did not even describe, much less offer
proof regarding, the additional evidence that it would have
provided to the board had a second de novo hearing been
provided. Nor did it explain what additional arguments or
“concerns” it would have raised. On the record before LUBA
at least, petitioner did not demonstrate that any proce-
dural error in not providing a second hearing, if any error
occurred, caused petitioner prejudice.
Petitioner contends on review to us that the prej-
udice was the failure to provide a second hearing so that
the board could review the planning commission’s ruling.
In other words, petitioner argues that the procedural error
alone, without the need to demonstrate anything else, is
prejudice to its substantial rights. It may be possible that
the lack of a second de novo hearing, assuming that peti-
tioner was entitled to one, could have caused prejudice to
petitioner’s substantial rights. But without presentation to
LUBA of what evidence or arguments would have been pre-
sented at that second hearing to demonstrate that petition-
er’s substantial rights had been prejudiced, we cannot con-
clude that LUBA erred in concluding that petitioner failed
to demonstrate that a procedural error caused any prejudice
to petitioner’s substantial rights.
We need not decide here how a petitioner might
demonstrate to LUBA that additional evidence or argument
at a second de novo hearing before the county board would
establish that the petitioner’s substantial rights were vio-
lated. We note, however, that OAR 661-010-0045(1) specifi-
cally provides that LUBA may consider evidence not in the
5
Petitioner does not contend that any of its due process rights under the
United States Constitution were violated.
648 Saige Timber, LLC v. Linn County
record in “actions for the purpose of avoiding the require-
ments of ORS 215.427,” the statutory time limit for counties
to act in these circumstances. Regardless, petitioner never
provided even a general legal argument to LUBA regarding
the type of new evidence or arguments that it would have
offered in a second hearing. Rather, as noted, it contended
that the procedural error itself demonstrated prejudice and
it need not demonstrate anything further.
In sum, we reject petitioner’s first assignment of
error. LUBA was not required to reverse or remand under
ORS 197.835(9)(a)(B) and, therefore, did not err.
We also reject petitioner’s second assignment of
error, in which it contends that LUBA erred in not address-
ing the merits of its argument that LCC 921.220(C) required
the board to provide a de novo hearing after the planning
commission’s de novo hearing. LUBA did not need to address
that issue after it concluded that petitioner did not demon-
strate that any assumed error in failing to provide a second
hearing violated petitioner’s substantial rights.
Affirmed.