Item A: Public Hearing onMetro Plan Amendment (Delta Sand and Gravel)

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Emily N. Jerome, Esq. November 10, 2006 Page 2 "The governil1g bodies' decisions shall be' based solely on the evidentiary record created before the planning commissions. No new evidence shall be allowed at the governing body joint hearil1g." See also LC 12.235(4). ' Havil1g limited its discretiol1, the City would exceed its authority were it to act cOl1trary to t11at self-imposed limitation. Third, while this issue has a procedural aspect to it, were the City to violate its Code al1d accept new evidence, that would constitute substantive error that could result in the case being remanded back to the City. We question whether the City wishes to build reversible error into its decision, when it can easily be avoided. There is a body of case law that holds that a local government's failure to follow its adopted hearing procedures, constitutes substantive error. In S11Zitl1 v. Douglas County, 93 Or App 503 (1983) aff'd 308 Or 191 (1989), the court held the County exceeded its scope of review in considering an issue not stated in the notice of appeal, when the county code specifically limited the board's consideration on appeal to issues stated in the notice of appeal. LUBA had found this error to be procedural. The Court of Appeals di$agreed and found the error to be substantive, explaining: "The propriety of the Board's action, however, does not concern how the Board exercised its authority, but, rather, whether the Board had authority to do what it did. In considering the compatibility issue, the Board exceeded its scope of authority as defined in its ordinance and consequently, acted inconsistently with its land use regulation. See ORS 197.835(3). That is a substantive error. OAR 61-10-071(1)(cO provides that LUBA 1/ shall reverse a land use decision" (emphasis supplied [by Court of Appeals]) if the decision llviolates a provision of applicable law and is prohibited as a matter of law." See ORS 197.835(1). The Board's violation of its ordinance required a reversal./I (Emphasis supplied.) Id. at 507. Since the error is substantive, no showing of prejudice is required and providing alternative non-code safeguards will not cure the error. Simply put, failure to follow the code prescribed hearing procedures is substantive error and is grounds for reversal. LUBA follows the rule set forth in Snlith v. Douglas County. For example, in Anderson v. City of Sh.ady Cove, 33 Or LUBA 173, 178-179 (1997), LUBA held the city council erred whe,n it attempted to avoid a code requirement limiting review to the record. In that