Johnson v. City of Bend

No. 132 February 22, 2024 173

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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

Karon V. JOHNSON, Petitioner Cross-Respondent, and Sara MOSS, Susi Gaylord and James Christo, Petitioners below, v. CITY OF BEND, Respondent Cross-Respondent, and COLVIN OIL I, LLC, Respondent Cross-Petitioner. Land Use Board of Appeals 2023024; A182443

Argued and submitted January 30, 2024. Karon V. Johnson argued the cause and filed the briefs pro se. J. Kenneth Katzaroff argued the cause for respondent- cross-petitioner. Also on the brief was Liz Fancher and D. Adam Smith and Schwabe, Williamson & Wyatt, P. C. Before Lagesen, Chief Judge, Hellman, Judge, and DeVore, Senior Judge. HELLMAN, J. Affirmed.

174 Johnson v. City of Bend

HELLMAN, J. Petitioners seek judicial review of a final opinion and order of the Land Use Board of Appeals (LUBA). Petitioners raise two assignments of error. In the first, petitioners argue that LUBA erred in holding that peti- tioners had waived arguments based on sections 1.0.100 and 2.0.100 of the Bend Development Code (BDC). In the second, petitioners argue that LUBA erred in holding that petitioners’ challenge to the conditional use permits under BDC 4.4.400(B) was an impermissible collateral attack on the site plan approval, which petitioners had not appealed. Intervenors cross-appeal, assigning error to LUBA’s hold- ing that approval of the site use plan did not constitute a binding determination of compliance with the conditional use permit approval criteria. We affirm. Here, both petitioners and intervenors contend that LUBA’s order is “unlawful in substance” under ORS 197.850(9)(a). Accordingly, “[w]e review LUBA’s interpreta- tion of the law for legal error.” Coopman v. City of Eugene, 327 Or App 6, 10, 534 P3d 1105 (2023). In so doing, we note that LUBA was required to give deference to Bend’s inter- pretation of its own city code. See Siporen v. City of Medford, 349 Or 247, 258-59, 243 P3d 776 (2010) (explaining that a governing body’s “interpretations” of its land use code are given deference as described in ORS 197.892(1)). Having reviewed the record and fully considered the parties’ briefs and oral argument, we conclude that neither party has demonstrated that LUBA erred in its interpreta- tion of the law. Accordingly, LUBA’s order is not unlawful in substance. Affirmed.