Hribernick v. City of Gresham

FILED: February 17, 1999

IN THE COURT OF APPEALS OF THE STATE OF OREGON

REITA HRIBERNICK

Petitioner,

v.

CITY OF GRESHAM and
GSL PROPERTIES,

Respondents.

(No. 98-118; CA A104499 )

Judicial review from Land Use Board of Appeals.

Argued and submitted January 25, 1999.

Eric J. Tenbrook argued the cause for petitioner. With him on the brief was Black Helterline LLP.

Richard D. Faus argued the cause for respondent City of Gresham. Jeff H. Bachrach argued the cause for respondent GSL Properties. With them on the brief were Andrew H. Stamp and O'Donnell Ramis Crew Corrigan & Bachrach.

Before Landau, Presiding Judge, and Deits, Chief Judge, and Rossman, Senior Judge.

PER CURIAM

Motion to strike granted; affirmed.

PER CURIAM

Petitioner appealed to LUBA from the City of Gresham's (city) approval of a subdivision. The city and the applicant, respondent GSL Properties (GSL), moved for a "voluntary remand" of the land use decision to the city. LUBA granted the motion over petitioner's objection and remanded the decision to the city.

Petitioner seeks our review. She assigns error to LUBA's granting of the voluntary remand and to its denial of her objections to the local record. We agree with LUBA's disposition of the voluntary remand motion, and we also agree with LUBA that, in view of that disposition, "[a]ny error that * * * may have been committed in settling the record may be rendered moot by the city's proceedings on remand."

We write only to emphasize that petitioner is not foreclosed, under the rationale of Beck v. City of Tillamook, 313 Or 148, 831 P2d 678 (1992), from reasserting in subsequent proceedings any points that she raised before LUBA or us and that were not resolved on their merits by LUBA or us in the present appeal and review. See Hendgen v. Clackamas County, 119 Or App 55, 58, 849 P2d 1138 (1993).

The city and GSL have moved to strike certain material from petitioner's brief and abstract, on the ground that it contains or refers to matters not in the record. The motion is granted.

Motion to strike granted; affirmed.