91视频

It is often easy to point the finger at land use decision-makers as biased, especially when it comes to highly charged development projects that require multiple election cycles to obtain approval.

Candidates run on particular platforms such as opposing big-box retail, liquid natural gas and public transit. Once elected, these local representatives must then consider quasi-judicial land use applications, decisions that require application of adopted approval criteria in an impartial manner, on issues that they have strenuously taken a general position. The question then becomes whether these elected decision-makers must step down because they cannot make an impartial decision.

The Oregon Court of Appeals considered this question in Columbia Riverkeeper v. Clatsop County, reversing the Land Use Board of Appeals’ ruling that a decision-maker’s statements and actions, taken together, indicated prejudgment bias that required recusal.

The Clatsop County Board of Commissioners in 2010 approved an application for a natural gas pipeline; this decision was appealed to LUBA. While the decision was pending, the Clatsop County board, with three newly elected commissioners, voted to withdraw the approval and reconsider its decision. Thereafter, the Clatsop County board denied the application. The applicant, Oregon Pipeline Company LLC appealed the denial, arguing that, among other things, Commissioner Peter Huhtala, one of the newly elected commissioners, had demonstrated disqualifying bias against OPC’s application.

The general rule announced by the Oregon Supreme Court in Fasano v. Board of County Commissioners of Washington is that parties to a quasi-judicial land use proceeding are entitled to a 鈥渢ribunal which is impartial in the matter.鈥� Impartiality can be destroyed through acts of self-dealing, bias and ex parte contacts. Bias can be the result of either a personal or pecuniary interest in the outcome or prejudgment of the matter.

That said, the court in the Fasano case did not explore what 鈥渋mpartiality鈥� means when it comes to activities that rise to the level of prejudgment. Subsequently, the courts have clarified that impartiality relates to the parties and issues 鈥渋n the matter鈥� only and not to intense involvement in community planning or unrelated governmental activities more generally.

Further, as a result of being politically elected to both legislate as well as make adjudicative decisions, a party challenging impartiality must prove 鈥渁ctual bias鈥� rather than just the appearance of such bias. An elected official is not expected to have no views on matters of community interest.

Finally, the courts have found that actual bias requires a finding that the decision-maker has so prejudged the matter as to be incapable of making a decision on the merits based on the evidence and arguments presented.

With this background, LUBA considered Huhtala’s activities. In reviewing the commissioner’s public statements and campaigning back to 2005 based on opposition of the construction of liquefied natural gas facilities anywhere in the Columbia River Estuary, LUBA found general statements of policy that did not require recusal. However, with respect to Huhtala’s opposition to an LNG terminal in Warrenton (including his participation in appeals to both LUBA and the Court of Appeals, although not technically the same project as the pipeline project at issue here), LUBA found that 鈥渢he pipeline and terminal were parts of the same overall project and proposal鈥� and therefore qualified as the same 鈥渕atter.鈥�

Further, LUBA found that Huhtala’s campaign statements made while the Clatsop County board considered this decision coupled with his participation in the board’s decision to withdraw its initial approval, when Huhtala’s vote was not necessary to make a decision indicated that his actions were driven by past opposition to LNG facilities and less by concern for proper application of the approval standards. Taken together, LUBA found that Huhtala was not capable of being impartial and should have refrained from voting.

The Court of Appeals disagreed with LUBA’s approach and found that although Oregon Pipeline Company’s application was part of a larger project involving multiple jurisdictions and facilities, the sole matter before the Clatsop County board was OPC’s pipeline application. The 鈥渕atter鈥� is prescribed solely by the discrete request subject to review. Huhtala’s opposition to other aspects of the larger LNG project or different LNG projects is entirely collateral to any actual bias to the subject application.

Further, the court found that none of Huhtala’s critical statements against LNG 鈥渆xplicitly, or by necessary implications, commit to an irrevocable position on the merits of OPC’s application.鈥� The court could find no explicit statements that Huhtala prejudged the specific matter and LUBA’s reliance on Huhtala’s vote to withdraw the application was nothing more that circumstantial evidence of political predisposition providing the appearance of bias but not actual bias.

The lessons here are twofold. First, decision-makers are expected to be political, take strong positions and set those convictions aside as necessary to adjudicate matters based solely on the facts presented and the criteria at issue. Fairness occurs when decisions are correctly rendered and not when decision-making is delayed based on invalidation based on appearance alone.

Second, the bar for raising a claim for prejudgment bias is incredibly high. For example, statements by an elected official that he does not need to be objective or that when elected he will vote against a particular proposal are, as a practical matter, the only types of disqualifying bias that will suffice.

Edward Sullivan is a retired owner in the Portland office of Garvey Schubert Barer. He has specialized in land use law for more than 45 years. Contact him at [email protected].

Carrie Richter is an owner specializing in land use and municipal law in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at [email protected].