In September 2014, I reported on the Parkview Terrace Development case, where the developer applied to transform Phases II and III of a planned unit development (PUD) from for sale townhouses to multi-family rentals and the City denied the application. LUBA reversed the City’s denial of an affordable housing development and ordered the City to grant the developer approval. In the Parkview Terrace blog post, I suggested that the case was ripe for an award of attorneys’ fees and LUBA recently issued an order on the fee motion.
The developer sought to recover over $39,000 in attorneys’ fees and had originally sought a mandatory fee award against the City of Grants Pass under ORS 197.835(10)(b) because LUBA reversed the City’s decision. However, LUBA’s order describes that the developer subsequently withdrew its motion for attorneys’ fees against the City. I can only surmise that the developer, a rental housing provider, calculated that its long-term working relationship with the City would not be bolstered by pursuit of these fees.
Thus, LUBA was left to determine whether the project neighbors should be on the hook for the developer’s fees. The standard of review for attorneys’ fee motions in land use matters is whether LUBA finds that a party presented a position without probable cause to believe the position was well-founded in law or on factually supported information. In these circumstances, “without probable cause” is where no reasonable lawyer would conclude that any of the legal points asserted on appeal possessed legal merit. In order to avoid attorneys’ fees in land use cases, a party must present at least one argument on appeal that satisfies the probable cause standard.
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