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HomeMy WebLinkAboutMiscellaneous APPLICANT 11/17/2008 . . I 5.13-140 Final Master Plan - Assurance to the Applicant and City Disclaimers A. Assurances to the applicant: 1. The applicant is entitled to relv on land use requlations in effect on the date the Master Plan application was submitted. in accordance with ORS 227.178(3) for the 7 vear approval time limit. with a sinqle 3 vear extension. g or as otherwise previouslv approved. Questio . Does this mean that all modification applications regarding approved Master arcola Meadows, RiverBend, etc.) should be processed under the current, rather than the proposed Master Plan text or does "land use regulations" in the above statement apply only to development standards and not application process? Date Received: /1 17 0 g Planner: GK iI 0" . . . Page 1 . Citation/Title 790 P.2d 1213, 101 Or.App. 458, Sunburst II Homeowners Ass'n v. City of West Linn, (Or.App. 1990) *1213 790 P.2d 1213 101 Or.App. 458 Court of Appeals of Oregon. SUNBURST II HOMEOWNERS ASSOCIATION, Steven Breum and William J. Allred, Petitioners, v. CITY OF WEST LINN, Respondent. LUBA 89-130; CA A63820. Argued and Submitted March 26, 1990. Decided May 2, 1990. Reconsideration Denied June 27, 1990. Review was sought on decision of the Land Use Board of Appeals which upheld city's approval of its own application for design review approval and conditional use permit to build a water tower. The Court of Appeals, Richardson, P.J., held that problems which opponents ascribed to the city's filing of petition after it amended its community development code related, at most, to a failure to follow applicable procedures and did not provide grounds for reversal or remand. Affirmed. West Headnotes Zoning and Planning ~625 414 ---- 4l4X Judicial Review or Relief 414X(C) Scope of Review 4l4X(C)1 In General 4l4k625 Harmless Error. ..Jate Re~ived: 11 17 0<<3 Plann..;,. GK Even if filing for design review approval and conditional use permit following amendment to community development code had amounted to a failure to follow applicable procedures on the grounds that it did not satisfy the requirements for a new application, that would not require reversal of the approval and the permit, as it would have been merely procedural error which would not have prejudiced the substantial rights of opponents. ORS 197.835(7) (a) (B). @ 2007 Thomson/West. No claim to original U.S. Govt. works. . . ~page 2 West 790 P.2d 1213, 101 Or.App. 458, Sunburst II Homeowners Ass'n v. City of Linn, (Or.App. 1990) Jacklyn M. Bartruff, Portland, argued the cause, for petitioners. With her on the brief were Margaret D. Kirkpatrick and Stoel Rives Boley Jones & Grey, Portland. William A. Monahan, Portland, argued the cause, for respondent. With him on *1214 the brief was O'Donnell, Ramis, Elliott & Crew, Portland. [101 Or.App. 460] Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ. RICHARDSON, Presiding Judge. City of West Linn approved its own application for design review approval and a conditional use permit to build a water tower. Petitioners appealed that decision to LUBA, which remanded it to the city, holding that the city had not demonstrated that the proposal complied with certain design review criteria in the West Linn Community Development Code. After the remand, the city amended the code to make those criteria inapplicable to the proposed tower and to other structures enumerated in the public facilities element of the city's comprehensive plan. The city then filed a new application document, supplementing its earlier filing. It applied the amended code provision and approved the application. Petitioners appealed to LUBA again, and it affirmed. They seek review, and we also affirm. ORS 227.178(3) provides: "If the application was complete when first submitted or the applicant submits the requested additional information within 180 days of the date the application was first submitted and the city has a comprehensive plan and land use regulations acknowledged under ORS 197.251, approval or denial of the application shall be based upon the standards and criteria that were applicable at the time the application was first submitted." Petitioners contended before LUBA that the document the city filed after it had amended the code did not amount to or satisfy requirements for a new application and that the city was therefore required by ORS 227.178(3) to apply the code provision that was in effect when the original application was filed. They also argued that, even if the amendment was applicable, the proposal would not qualify for approval under it. LUBA rejected both arguments. Petitioners do not renew the latter argument to us, but assign error to LUBA's conclusion that what the city filed after the code amendment was "a second 'application,' within the meaning of ORS 227.178(3)." (FNll Restated, petitioners' present argument is that the proposed tower is a permissible use under current law, but the city was required to apply its former law to the proposal, because what [101 Or.App. 461] it filed after the amendment was not sufficient to constitute an application independent of the original one. Although we do not disagree with the more extensive reasoning that led LUBA to conclude otherwise, it suffices to say that all of the problems that petitioners / n..+_ Dnr,~:. __.', .I { ',7 0 0 @ 2007 Thomson West. No E'~~' co' "orl~na", T1" Govt. works. Planner; '-J;" . . Page 3 790 P.2d 1213, 101 Or.App. 458, Sunburst II Homeowners Ass'n v. City of West Linn, (OLApp. 1990) ascribe to the city's post-amendment filing could amount at most to a failure to follow applicable procedures. (FN2) Under ORS 197.835 (7) (a) (B), such a failure is a ground for reversal or remand of a local land use decision only if it "prejudice[s] the substantial rights of the petitioner." See also ORS 197.850(9) (a). Petitioners do not agree that the errors that they assert are merely procedural. They maintain that, because what was submitted was not a new application, the ultimate error was a failure by the city to apply the correct law and, therefore, to construe the law correctly. ORS 197.835(7) (a) (D). Petitioners beg the question. Unless what the city filed after the amendment fell short of being an "application" for the purposes of ORS 227.178(3), the city construed the law correctly by applying the amended provision, and petitioners' bases for contending that the city's post-amendment filing did not constitute an application are solely procedural. No prejudice to petitioners' substantial rights could have resulted from the city's procedure. The city conducted the plenary proceedings that its code requires for permit applications, and petitioners had a full opportunity to participate. In Kirpal Light Satsang v. Douglas County, 96 Or.App. 207, 772 P.2d 944, adhered to 97 *1215. Or.App. 614, 776 P.2d 1312, To view preceding link please click here rev. den., 308 Or. 382, 780 P.2d 735 (1989), we held that, under ORS 215.428(3), the analog of ORS 227.178(3) for counties, persons who file applications before more restrictive legislation is adopted are entitled to have the earlier law applied to their applications. Otherwise, their rights under the pre-existing standards would be permanently nullified. The situation here differs by essentially 100 percent. The new legislation in Kirpal Light Satsang was inconsistent with granting any application except the original; insofar as petitioners argue, the new legislation here [101 Or.App. 462] would require the original application to be denied. The procedural errors that petitioners claim occurred could not and cannot affect the ultimate decision. Affirmed. (FN1.) Petitioners make one other assignment, but it requires no discussion. (FN2.) Moreover, in the city proceedings, petitioners did not complain about many of the putative defects that they assert now. L. :;t.;;vc<J: Plallo ,Qt; GK II 17 os .__.41__ @ 2007 Thomson/West. No claim to original U.S. Govt. works. . 227.179 specified period of time at the written re- quest of the applicant. The total of all ex- tensions may not exceed 245 days. (6) The 120-day period set in subsection (1) of this section applies: (a) Only to decisions wholly within the authority and control of the governing body of the city; and (b) Unless the parties have agreed to mediation as described in ORB 197.319 (2)(b). (7) Notwithstanding subsection (6) of this section, the 120-day period set in subsection '(1) of this section does not apply to an amendment to an acknowledged comprehen- sive, plan or land use regulation or adoption of a new land use regulation that was for- warded to the Director of the Department of Land Conservation and Development under ORB 197.610 (1). (8) Except when an applicant requests an extension under subsection (5) of this sec- tion, if the governing body of the city or its designee does not take final action on an application for a permit, limited land use de- cision or zone change within 120 days after the application is deemed complete, the city shall refund to the applicant, subject to the provisions of subsection (9) of this section, either the unexpended portion of any appli- cation fees or deposits previously paid or 50 percent of the total amount of such fees or deposits, whichever is greater. The applicant is not liable for additional governmental fees incurred subsequent to the payment of such fees or deposits. However, the applicant is responsible for the costs of providing suffi- cient additional information to address rele- vant issues identified in the consideration of the application. (9)(a) To obtain a refund under subsec- tion (8) of this section, the applicant may ei- ther: (A) Submit a written request for pay- ment, either by mail or in person, to the city or its designee; or (B) Include the amount claimed in a mandamus petition filed under ORB 227.179. The court shall award an amount owed under this section in its final order on the petition. (b) Within seven calendar days of receiv- ing a request for a refund, the city or its designee shall determine the amount of any refund owed. Payment, or notice that no payment is due, shall be made to the appli- cant within 30 calendar days of receiving the request. Any amount due and not paid within 30 calendar days of receipt of the request shall be subject to interest charges at the rate of one percent per month, or a portion thereof. Title 21 . CITIES (c) If payment due under paragraph (b) of this subsection is not paid within 120 days after the city or its designee receives the re- fund request, the applicant may file an action for recovery of the unpaid refund. In an ac- tion brought by a person under this para- graph, the court shall award to a prevailing applicant, in addition to the relief provided in this section, reasonable attorney fees and costs at trial and on appeal. If the city or its designee prevails, the court shall award rea- sonable attorney fees and costs at trial and on appeal if the court finds the petition to be frivolous. (10) A city may not compel an applicant to waive the 120-day period set in subsection (1) of this section or to waive the provisions of subsection (8) of this section or ORB 227.179 as a condition for taking any action on an application for a permit, limited land use deCision or zone change except when such applications are filed concurrently and considered jointly with a plan amendment. 11983 c.827 ~27; 1989 0.761 U6; 1991 0.817 ~15; 1995 0.812 ~3; 1997 0.844 ~8; 1999 0.533 ~; 2003 c.l50 U; 2003 c.800 ~1) 227.179 Petition for writ of mandamus authorized when city fails to take final action on land use application within 120 days; jurisdiction; notice of petition. (1) Except when an applicant requests an exten- sion under ORB 227.178 (5), If the governing body of a city or its designee does not take final action on an application for a permit, limited land use decision or zone citange within 120 days after the application is deemed complete, the applicant may file a petition for a writ of mandamus under ORB 34.130 in the circuit court of the county where the application was submitted to com- pel the governing body or. its designee to is- sue the approval. (2) The governing body shall retain juris- diction to make a land use decision on the application until a petition for a writ of mandamus is filed. Upon filing a petition un- der ORB 34.130, jurisdiction for all decisions regarding the application, including settle- ment, shall be with the circuit court. (3) A person who files a petition for a writ of mandamus under this section shall provide written notice of the filing to all persons who would be entitled to notice un- der ORB 197.763 and to any person who par- ticipated orally or in writing in any evidentiary hearing on the application held prior to the filing of the petition. The notice shall be mailed or hand delivered on the same day the petition is filed. (4) If the governing body does not take final action on an application within 120 days of the date the application is deemed complete, the applicant may elect to E,roceed Date R'~r.eived: II 17 00 Page 268 Planner. GK (2007 Edition) 1 " ~ " ~ f~ >~ "i i 1; ,1 ... ~ll ~ . .:Ail' ~. . ~; , J : ~ ( , " l' '. -i:; e . e. CITY PLANNING AND ZONING 227.178 initial hearing shall be refunded. The fee al- lowed in this paragraph shall not apply to appeals made by neighborhood or community organizations recognized by the governing body and whose boundaries include the site. (c)(A) Notice of a decision under para- graph (a) of this subsection shall be provided to the applicant and to the owners of record of property on the most recent property tax assessment roll where such property is lo- cated: (i) Within 100 feet of the property that is the subject of the notice when the subject property is wholly or in part within an urban growth boundary; (ii) Within 250 feet of the property that is the subject of the notice when the subject property is outside an urban growth bound- ary and not within a farm or forest zone; or (iii) Within 750 feet of the property that is the suhject of the notice when the subject property is within a farm or forest zone. (B) Notice shall also be provided to any neighborhood or community organization re- cognized by the governing body and whose houndaries include the site. (C) At the discretion of the applicant, the local government also shall provide notice to the Department of Land Conservation and Development. (11) A decision described in ORS 227.160 (2)(b) shall: (a) Be entered in a registry available to the public setting forth: (A) The street address or other easily understood geographic reference to the sub- ject property; (B) The date of the decision; and (C) A description of the decision made. (b) Be subject to the jurisdiction of the Land Use Board of Appeals in the same manner as a limited land use decision. (c) Be subject to the appeal period de- scribed in ORS 197.830 (5)(b). (12) At the option of the applicant, the local government shall provide notice of the decision described in ORS 227.160 (2)(b) in the manner required by ORS 197.763 (2), in which case an appeal to the board shall be filed within 21 days of the decision. The no- tice shall include an explanation of appeal rights. (13) Notwithstanding other requirements of this section, limited land use decisions shall be subject to the requirements set forth in ORS 197.195 and 197.828. 11973 c.739 ~~9.l0; 1975 c.767 ~8; 1983 c.827 ~24; 1985 c.473 ~15; 1987 c.106 ~3; 1987 c.729 ~18; 1989 c.648 ~; 1991 c.612 ~21; 1991 c.817 96; 1995 c.692 ~2; 1997 c.844 ~5; 1999 c.621 ~2; 1999 c.935 ~24; 200l c.397 ~2J Title 21 227.178 Final action on certain appli- cations required within 120 days; proce- dure; exceptions; refund of fees. (1) Except as provided in subsections (3) and (5) of this section, the governing body of a city or its designee shall take final action on an appli- cation for a permit, limited land use decision or zone change, including resolution of all appeals under ORS 227.180, within 120 days after the application is deemed complete. (2) If an application for a permit, limited land use decision or zone change is incom- plete, the governing body or its designee shall notif'y the applicant in writing of ex- actly what information is missing within 30 days of receipt of the application and allow the applicant to submit the missing informa- tion. The application shall be deemed com- plete for the purpose of subsection (1) of this section upon receipt by the governing body or its designee of: (a) All of the missing information; (b) Some of the missing information and written notice from the applicant that no other information will be provided; or (c) Written notice from the applicant that none of the missing information will be pro- vided. (3)(a) If the application was complete when first submitted or the applicant submits the requested additional information within 180 days of the date the application was first submitted and the city has a comprehensive plan and land use regulations acknowledged under ORS 197.251, approval or denial.,of the application shall be based upon the standards and criteria that were applicable at the time the application was first submitted. (b) If the application is for industrial or traded sector development of a site identified under section 12, chapter 800, Oregon Laws 2003, and proposes an amendment to the comprehensive plan, approval or denial of the application must be based upon the standards and criteria that were applicable at the time the application was first submitted, provided the application complies with paragraph (a) of this subsection. (4) On the 181st day after first being submitted, the application is void if the ap- plicant has been notified of the missing in- formation as required under subsection (2) of this section and has not submitted: (a) All of the missing information; (b) Some of the missing information and written notice that no other information will be provided; or (c) Written notice that none of the miss- ing information will be provided. (5) The 120-day period set in subsection (1) of this section may be extended for a Page 2Mte Received:)! /7 06 (2007 Edition) Planner: GK . . . . Page 1 Citation/Title 854 P.2d 483, 121 Or.App. US, Davenport v. City of Tigard, (Or.App. 1993) *483 854 P.2d 483 121 Or.App. 135 Court of Appeals of Oregon. Marge DAVENPORT, Respondent, v. CITY OF T1GARD, Respondent below, and Triad Tigard Limited Partnership and Ross Woods, Petitioners. LUBA No. 92-104; CA A79179. Argued and Submitted May 14, 1993. Decided June 16, 1993. City granted application for approval of a new apartment development, and individual appealed decision to Land Use Board of Appeals (LUBA), which remanded. The city and the developer appealed. The Court of Appeals, Deits, P.J., held that changes in law that went into effect after the application was made but before decision was made did not apply to the application. Affirmed. West Headnotes [1] Statutes ~2l9 (9.1) 361 ---- 36lVI Construction and Operation 36lVI(A) General Rules of Construction 36lk2l3 Extrinsic Aids to Construction 36lk2l9 Executive Construction 36lk2l9(9) Particular State Statutes 36lk2l9(9.l) In General. ryate P~r:eived: II 17 00' Planflbf. GK The meaning of statutory term "standards and criteria" in section of zoning statute regarding application for permits, limited land use developments, or zone changes is a question of state law; thus, a local interpretation or application of that term does not bind Court of Appeals. ORS 227.178(3). , [2] Zoning and Planning ~278.l @ 2007 Thomson/West. No claim to original U.S. Govt. works. . . . Page 2 854 P.2d 483, 121 Or.App. 135, Davenport v. City of Tigard, (Or.App. 1993) 414 414V Construction, Operation and Effect 414V(C) Uses and Use Districts 414V(C)1 In General 414k278 Particular Terms and Uses 414k278.1 In General. "Standards and criteria" as used in statute regarding applications for permits, limited land use developments, or zone changes are not limited to the provisions that may be characterized as "approval criteria" in a local comprehensive plan on land use regulation. ORS 227.178(3). [3] Zoning and Planning <9378.1 414 ---- 414VIII Permits, Certificates and Approvals 414VIII (A) In General 414k378 Grounds for Grant or Denial 414k378.1 In General. "Standards and criteria" under statute regarding applications for permits, limited land use developments or zone changes are intended to assure both proponents and opponents of an application for approval of new apartment development that the substantive factors that are actually applied have a meaningful impact on the decision permitting or denying an application and remain constant throughout proceedings. ORS 227.178(3). [4] Zoning and Planning <9376 414 ---- 414VIII Permits, Certificates and Approvals 414VIII (A) In General 414k375 Right to Permission, and Discretion 414k376 Change of Regulations as Affecting Right. Approval of an apartment development was improper where it would not have been approved but for amendments that went into effect after the application was made. *484 [121 Or.App. 136] Steven L. Pfeiffer, Portland, argued the cause for petitioners. With him on the brief were Michael R. Campbell and Stoel Rives Boley Jones & Grey, Portland. Richard M. Whitman, Portland, argued the cause for respondent. the brief was Ball, Janik & Novack, Portland. With him on Before DEITS, P.J., and RIGGS and DURHAM, JJ. Date Received: Planner: GK ! / 17 o~ [121 OLApp. 137] DEITS, Presiding Judge. @ 2007 Thomson/West. No claim to original U.S. Govt. works. . . Page 3 854 P.2d 483, 121 Or.App. 135, Davenport v. City of Tigard, (Or.App. 1993) The City of Tigard granted petitioners' application for approval ([FN1]) of a 348-unit apartment development. Respondent ([FN2]) appealed the decision to LUBA, which remanded it to the city. Petitioners seek review, and we affirm. We take the facts from LUBA's opinion: "A prior request for approval of an apartment development on the subject property was denied by the city in 1990, due to traffic safety concerns related to the condition of the streets and intersections serving the subject property. Thereafter, following study of alternatives for street system improvements, amendments to the Tigard Comprehensive Plan (TCP) Transportation Map were proposed. These amendments changed the classifications of certain streets serving the subject property and designated new streets and street extensions. "The above noted TCP Transportation Map amendments were adopted September 12, 1991. ([FN1)) The application that led to the decision challenged in this appeal was submitted to the city one day later on September 13, 1991. The city applied the TCP, as amended, and other relevant TCP and Tigard Community Development Code (TCDC) provisions and granted the approvals challenged in this appeal on April 28, 1992. *485 ORS 227.178(3) provides that a city's approval or denial of a permit "application shall be based upon the [121 Or.App. 138] standards and criteria that were applicable at the time the application was first submitted." Respondent argued to LUBA that the city erred by applying the amended version of the transportation map to petitioners' renewed application, reasoning that the amendment was not acknowledged or deemed acknowledged at the time of the application's resubmission, and the acknowledged unamended provisions therefore remai.ned the applicable "standards and criteria." LUBA agreed with respondent's position on this issue. It first concluded that the amendments contained approval "standards and criteria" within the meaning of ORS 227.178(3). It explained, in part, that "a number of the TCP and TCDC provisions that were applied by the city * * * and found to be satisfied either could not or would not have been applied in the way they were if the unamended (pre-September 12, 1991) TCP Transportation Map continued to apply." (Emphasis in original; footnote omitted.) LUBA then reasoned, on the basis of our opinion in Von Lubken v. Hood River County, 118 Or.App. 246, 846 P.2d 1178, rev. den., 316 Or. 529, 854 P.2d 940 (1993), "that comprehensive plan standards and criteria adopted or amended by postacknowledgment plan amendments do not apply to permit applications filed after such postacknowledgment plan amendments are adopted, but before thos e postacknowledgment plan amendments were deemed acknowledged. Under the court's decision in Van Lubken, it does not matter when an ordinance adopting amended plan provisions is final or legally effective. Rather, the critical date, for purposes of identifying potentially applicable standards and criteria in the comprehensive plan, is the date the amended plan standards and @ 2007 Thomson/West. No claim to original U.S. Govt. works. DatE "',.-niVed: /1 17 0 '6 Planner; GK . . Page 4 854 P.2d 483, 121 OLApp. 135, Davenport v. City of Tigard, (OLApp. 1993) criteria are considered acknowledged, pursuant to ORS 197.625." original; footnotes omitted.) ([FN4]) (Emphasis in LUBA added: "In a footnote, the court did state that it did 'not mean to imply there are no circumstances in which it would be permissible to apply local provisions before they are acknowledged.' Von Lubken [v. Hood River County], supra, 118 Or [121 Or.App. 139] App at 249 n 1 [846 P.2d 1178] To view preceding link please click here We are uncertain to what circumstances the court may be referring." ([FN5]) LUBA concluded that, because the map amendments were not yet acknowledged at the time that petitioners filed their new application, the pre-existing acknowledged map remained applicable "until the newly adopted * * * amendment is itself deemed acknowledged." Therefore," the city erred by applying the amended, but as yet unacknowledged, TCP Transportation Map provisions" to petitioners' application instead of the unamended provisions. Petitioners' assignment does not challenge LUBA's conclusion that, if the amendments do entail approval standards or criteria, Von Lubken precludes their application to the proposed development. ([FN6]) Rather, petitioners contend in their first *486 assignment to us that LUBA erred in concluding that the amended map contained "standards and criteria," within the meaning of ORS 227.178. They assert that the amendments contain no rules "for determining whether to approve or deny a development application" and, therefore, cannot constitute approval standards or criteria under the statute. Respondent answers that the city did, in fact, apply the amendments as an approval standard or criterion. She [121 Or.App. 140] points to various parts of the city's order, including its conclusion that the city's one-year limit on the resubmission of a denied application was inapplicable here because, inter alia: "The Council agrees with the applicant that the current site plan with a public road through the development eliminating the need for variances to public road improvement standards is a substantial change from the previously denied site plan thereby constituting a substantial change in facts from the previously denied application. In addition, the recently approved amendment to the Transportation Plan constitutes a change in City policy that may affect the outcome of the application." (Emphasis supplied.) As did LUBA in a portion points to specific ways in upon the amendments. [1] Respondent concludes: of its opinion that we have quoted, respondent also which the city's decisi~ applied or was contingent Date Received:J ( t7 0 Planner: GK "The city's determination of what provisions of its comprehensive plan @ 2007 Thomson/West. No claim to original U.S. Govt. works. . " . . Page 5 854 P.2d 483, 121 Or.App. 135, Davenport v. City of Tigard, (Or.App. 1993) and land use regulations are applicable 'standards and criteria' for a particular application is the city's to make in the first instance, and must be upheld unless it is 'clearly wrong. ' Clark v. Jackson County, 313 Or 508, 836 P2d 710 (1992); Weeks v. City of Tillamook, 117 Or App 449, 453-54, 844 P2d 914 (1992)." That statement goes too far. "Standards and criteria" is a statutory term; its meaning is a question of state law, and a local interpretation or application of it does not bind us. See Forster v. Polk County, 115 Or.App. 475, 478, 839 P.2d 241 (1992), and authorities there cited. Although the city may interpret its legislation, subject to the limited standard of review defined in Clark, neither its interpretation nor its legislation can be given effect if it is contrary to or necessitates the misapplication of a state statute. See Ramsey v. City of Portland, 115 Or.App. 20, 836 P.2d 772 (1992). For example, a city could not circumvent ORS 227.178(3) by "interpreting" approval standards or criteria in its legislation as not being approval standards or criteria. ([FN7 ]) The statute is for LUBA and us, rather than the city, to interpret definitively. [121 Or. App. 141] [2J [3] We conclude that the term "standards and criteria," as used in ORS 227.178(3) and ORS 215.428(3), is not limited to the provisions that may be characterized as "approval criteria" in a local comprehensive plan or land use regulation. See note 7, supra. The role that the terms play in the two statutes is to assure both proponents and opponents of an application that the substantive factors that are actually applied and that have a meaningful impact on the decision permitting or denying an application will remain constant throughout the proceedings. See Sunburst II Homeowners Assn. v. City of West Linn, 101 Or.App. 458, 790 P.2d 1213, *487. rev. den., 310 Or. 243, 796 P.2d 360 (1990); Kirpal Light Satsang v. Douglas County, 96 Or.App. 207, 772 P.2d 944, on recon., 97 Or.App. 614, 776 P.2d 1312, rev. den., 308 Or. 382, 780 P.2d 735 (1989). That protective purpose of the statute would not be served by our adoption of the restrictive meaning that petitioners would give the term. The statutes do not refer only to the local provisions that the local government must apply in acting on an application; it also includes provisions, like the amendments here, that the government does apply and that have a meaningful impact on its decision. [4] Here, the city made a change in the decisive factors that it applied. It is apparent from the city's orders themselves that the new application would not have been approved but for the amendments. That is precisely what the city was not permitted to do under LUBA's unchallenged understanding of Von Lubken v. Hood River County, supra. We are not persuaded by petitioner's first assignment of error. We have considered petitioners' remaining assignments and conclude, without discussion, that none of them demonstrates a basis for reversal. If '7 OS Affirmed. Da. "''l\IlK\: Planli...l. GK @ 2007 Thomson/West. No claim to original U.S. Govt. works. . . Page 6 854 P.2d 483, 121 Or.App. 135, Davenport v. City of Tigard, (Or.App. 1993) (FNl.) The precise nature of the approval is disputed and is the subject of one of the assignments of error that petitioners make to us. That is a matter for the city to resolve on remand. (FN2.) We refer to the parties by their designations in this court. (FNl.) 'The decision adopting these TCP amendments was appealed to this Board, and the city's decision was remanded on January 28, 1992. Davenport v. City of Tigard, 22 Or LUBA 577 (1992). Those TCP amendments subsequently were . modified and readopted by the city. That city decision was also appealed to this Board and was affirmed. Davenport v. City of Tigard, Or LUBA (LUBA No. 92-078, August 11, 1992) [aff'd, 116 Or.App. 248, 839 P.2d 773 (1992) ]." ([FN3)) (FN3.) It is unnecessary to our analysis to explain the amendments in detail. Their general objective was to improve street and traffic capabilities in the vicinity of the proposed development. (FN4.) In Von Lubken, we construed ORS 215.428(3), which applies to county permit decisions and is otherwise materially identical to ORS 227.178(3). (FN5.) Our comment was intended to refer to a situation where an amendment makes a change that does not significantly alter the substance or operation of the existing legislation. In such a case, Von Lubken would not make it inapplicable before acknowledgment. (FN6.) Our decision in Von Lubken concerned the applicability of an existing acknowledged approval standard in the county's plan that had been repealed by legislation that was not yet acknowledged. We held that, until the repealed legislation was acknowledged or deemed acknowledged, ORS 197.625, the pre- existing provision remained acknowledged and it remained applicable instead of the unacknowledged amendment. In the Von Lubken situation, that conclusion was logically compelled, because acknowledged legislation must be applied to a local government's land use decisions, and effect cannot simultaneously be given to two provisions, one of which was enacted to eliminate the other. This case, of course, concerns the other end of the spectrum--the applicability of a new provision that has not yet been acknowledged. However, we believe that the reasoning of Von Lubken supports the same conclusion regarding such legislation. If an amendment makes a substantive change in the way in which the unamended legislation operates, it would be inconsequential whether the inquiry focuses on the acknowledged status of the original legislation or on the unacknowledged status of the amendment. If they are inconsistent, the existing provision prevails until the change is acknowledged. (FN7.) The issue we discuss differs from the one in Downtown Comm. Assoc. v. City of Portland, 80 Or.App. 336, 722 P.2d 1258, rev. den., 302 Or. 86, 726 P.2d 1185 '(1986). The question there was solely whether language in a plan established an approval criterion or something less binding. That question III] O~ @ 2007 Thomson/West...:ijl!elVeo~m to original U.S. Govt. works. h...,iler. GK - .. . . Page 7 854 P.2d 483, 121 Or.App. 135, Davenport v. City of Tigard, (Or.App. 1993) could be answered solely by reference to the plan itself and, after Clark, would be a matter for local interpretation and limited LUBA and judicial review. It is a different situation, however, when a state statute, as well as the local plan and the local interpretation of it, apply to the local government's decision. l .e Reooll/CO: II 17 0'0 Planner: GK @ 2007 Thomson/West. No claim to ori~irial U.S. Govt. works.