New Search
1 <br />2 <br />3 <br />4 <br />5 <br />6 <br />7 <br />8 <br />9 <br />10 <br />11 <br />12' <br />13 <br />14 <br />15 <br />16 <br />17 <br />18 <br />19 <br />20 <br />21 <br />22 <br />23 <br />24 <br />25 <br />26 <br />D. Response to Fourth Assignment of Error <br />LUBA has consistently stated that it will not elevate form over substance when <br />reviewing an enactment that was made by resolution instead of an ordinance. <br />In their two - sentence assignment of error, Petitioners argue that, pursuant to ORS <br />227.186(2), the City was required to adopt the PROS Plan by ordinance, not by resolution. <br />Petitioners do not explain to LUBA or the City how adoption of the PROS Plan by resolution <br />prejudiced anyone or why adoption of the PROS Plan by resolution would warrant remand of the <br />Plan by LUBA. <br />LUBA has consistently held that "the form in which an enactment is adopted is <br />immaterial where the enactment is in substance and effect a permanent regulation and hence an <br />ordinance." Carlsen v. City of Portland, 36 Or LUBA 614, 625 n.6 (1999); Baker v. City of <br />Milwaukie, 271 Or 500, 511 (holding that the name given to the enactment was immaterial <br />because it is in substance and effect an ordinance). Further, in Boom v. Columbia County, 31 <br />Or LUBA 318, 323 (1996), this Board held that, "[n]otwithstanding the use of the word <br />`ordinance' in ORS 197.015(l 1), whether a land use regulation is adopted by resolution or <br />ordinance is unimportant." <br />In this case, the City adopted the PROS Plan by resolution. However, adoption of the <br />PROS Plan by resolution instead of ordinance did not impact the process the that City followed <br />to adopt the Plan. Prior to adopting the resolution the City engaged in an extensive public <br />hearing process, discussion with the City's Planning Commission and discussion with the City <br />Council. Specifically, prior to the adoption of the PROS Plan, in addition to the public outreach <br />that the City undertook prior to starting the formal adoption process, the City held two public <br />hearings, one in front of the Planning Commission and one in front of the City Council, and held <br />numerous work sessions with the Planning Commission and the City Council. (Rec. 157, 173, <br />329, 912, 915). Thus, to the extent that ORS 227.182(2) requires that the City adopt the PROS <br />Plan by ordinance and not resolution, the City's adoption of the PROS Plan by resolution is <br />Pace 1= - BRIEF OF RESPONDENT <br />