Cummins v. Washington County

RICHARDSON, P. J.

Petitioner seeks review of LUBA’s remand of the Washington County Board of County Commissioners’ order imposing conditions for driveway access on the approval of his proposed single family dwelling. Petitioner argues that the county’s decision should be reversed outright, because its hearings officer rendered an oral decision that purportedly differed in some respects from the hearings officer’s later written order that the board affirmed. Petitioner contends that the original oral decision was binding and that LUBA should have ordered its reinstatement.

LUBA concluded that petitioner had the opportunity to “present evidence and argument to the board of commissioners to explain why the hearings officer’s oral decision should prevail” on its merits over the written decision. Therefore, there was no prejudice to his substantial rights and no basis for reversal stemming from the asserted procedural error. See ORS 197.835(7)(a)(B). We agree. There were procedures available to petitioner that could have fully cured any error of the kind that he postulates.

Petitioner contends, however, that that procedural opportunity was illusory, because the board and the county staff were biased. LUBA concluded that petitioner failed to “demonstrate that the public officials charged with bias are incapable of making a decision on the basis of the evidence and argument presented. 1000 Friends of Oregon v. Wasco [Co. Court], 304 Or 76, 742 P2d 39 (1987)[, cert den 486 US 1007 (1988)].” LUBA was correct. All that petitioner’s claim of bias amounts to is that the board and the staff disagreed with a proposal that he strongly feels is a good one. Because it would have been harmless, we need not decide whether there was an error as asserted.

Motion to dismiss denied;¹ affirmed.

1 The county moved to dismiss the petition for review. We denied the motion before oral argument with leave to renew it at oral argument. The county withdrew the motion at oral argument.