Oregon Land Use Board of Appeals

2014

May 5 summaries

Delta Property Company LLC v. Lane County

Under ORS 215.213(2), a county may restrict mining in marginal lands zoned for exclusive farm use beyond the requirements of the statute by enacting its own legislation to supplement the statute.

Area(s) of Law:
  • Land Use

Kukaska v. Linn County

Under Linn County Code 932.860 and 932.870(a), the determining factor for approval of a medical hardship dwelling is whether the applicant requires daily care; it is not necessary that the applicant meet both age and infirmity requirements.

Area(s) of Law:
  • Land Use

Southwest Medford LLC. v. City of Medford

A revision to a previously approved planned unit development seeking to remove a voluntarily agreed-upon condition may be denied if the revision does not comply with all other relevant approval criteria.

Area(s) of Law:
  • Land Use

Stop the Dump Coalition v. Yamhill County

OAR 661-010-0030(1) imposes a strict deadline for filing a petition for review 21 days after the date the record is settled by the Board, and is not a “technical violation” waivable at the Board’s discretion.

Area(s) of Law:
  • Appellate Procedure

Beaumont-Wilshire Neighbors v. City of Portland

Oregon Plumbing Speciality Code 1101.5.3.2, granting the Bureau of Development Services Appeals Board authority to approve deviations, does not “impose any express limits on or standards to guide decisions approving such deviations.”

Area(s) of Law:
  • Land Use

June 2 summaries

Lamar Outdoor Advertising Co. v. City of Tigard

Tigard Development Code 18.780.090.D sets out a cumulative list of requirements for approval of variable-message signs; these approvals are not “permits” for the purposes of ORS 227.175(3).

Area(s) of Law:
  • Land Use

Oregon Pipeline Company v. Clatsop County

The threshold for finding bias for county commissioners is high due to the nature of the position mixing executive, legislative, and judicial functions; participation as a party opponent in a related proceeding and bringing a vote unnecessarily shortly after taking office are strong indicators of bias.

Area(s) of Law:
  • Municipal Law

July 7 summaries

Egge v. Lane County

A decision to determine a violation of a permit condition is not a “land use decision” and thus not subject to LUBA’s jurisdiction.

Area(s) of Law:
  • Appellate Procedure

Morton v. Clackamas County

A hearings officer reviewing a permit application under Clackamas County Zoning and Development Ordinance 1203.01(D) must apply a three-prong inquiry to determine if the use would “limit, impair, or preclude” use of surrounding properties.

Area(s) of Law:
  • Municipal Law

McCaffree v. Coos County

Modification of a permit condition for a natural gas pipeline that crosses over estuarine lands does not need to satisfy Estuary Management Plan policies where the policies were not invoked in the establishment of the condition and not implicated by the modification.

Area(s) of Law:
  • Land Use

Carver v. Washington County

In a multi-phase development, to enforce conditioning construction of earlier phases on satisfying conditions applicable to later phases, a challenger must cite a code requirement or other legal standard as the risk of not completing a multi-phase development is always present.

Area(s) of Law:
  • Land Use

Goodpasture Partners LLC v. City of Eugene

Under Eugene Code 9.8370, a modification years later to an approved PUD is consistent with the original condition requiring a performance agreement where the condition leaves the establishment of a timetable to the performance agreement.

Area(s) of Law:
  • Municipal Law

Parkview Terrace Development LLC v. City of Grant's Pass

Under ORS 197.303, Grant’s Pass Development Code 19.052 (2), (4)-(6), (8)(a) and (e), (9), and (11), cannot be used to deny a proposal for “needed housing” as they are not “clear and objective” approval standards.

Area(s) of Law:
  • Municipal Law

Save Downtown Canby v. City of Canby

City of Canby did not err in approving rezoning from Downtown Canby Overlay Core Commercial to Outer Highway Commercial for purposes of approving a permit to build a fuel station.

Area(s) of Law:
  • Land Use

August 7 summaries

Pacificorp v. Deschutes County

Definition of a term to include a more expansive meaning for purposes of historic resource designation must be justified by context, technical definitions of the term, dictionary definitions at the time the designation was made, and the nature of historic resources at the time of designation.

Area(s) of Law:
  • Land Use

Lake Oswego Preservation Society v. City of Lake Oswego

Under ORS 197.772(3), a request to remove property from the list of historic landmarks may only be initiated by the property owner at the time of designation, not by a successor in interest.

Area(s) of Law:
  • Land Use

Macfarlane v. Clackamas County

Under Zoning and Development Ordinance 406.04(D), a “dwelling” consists of a “detached single-family dwelling” and may not be used to connect to houses through a breezeway to comply with zoning limiting to one dwelling on the property.

Area(s) of Law:
  • Land Use

Christensen v. City of Portland

Under OAR 661-010-0067(2) the time limit for filing a petition for review may be extended only by written consent of all parties.

Area(s) of Law:
  • Appellate Procedure

Oakleigh-McClure Neighbors v. City of Eugene

Under Eugene Code 9.8320(3), “screening” for a planned unit development requires the use of visual impediments such as berms, closely planted vegetation, or walls; open space is not sufficient to satisfy this requirement.

Area(s) of Law:
  • Municipal Law

Rogue Advocates v. Jackson County

Approval of floodplain development permits while related appeal was pending was error requiring reexamination of the application under more formal notice and participation procedures.

Area(s) of Law:
  • Municipal Law

Columbia Riverkeeper v. Columbia County

Lack of specificity in identifying proposed uses for the purposes of a Goal 2 reasons exception is not fatal to approval under OAR 660-004-0022(3), but specificity is vital to justify reasons based on these uses for purposes of OAR 660-004-0020.

Area(s) of Law:
  • Land Use

September 3 summaries

Kaimanu v. Washington County

When a development code sets out differing requirements such as setback and parking based on usage to which the structure is put, the nonconforming status of the structure does not foreclose violations of those requirements based on use.

Area(s) of Law:
  • Land Use

Foland v. Jackson County

A “water system” for the purposes of a Goal 11 (Public Facilities and Utilities) exception only includes water to be used for human consumption; modification of proposal to change the source of landscape irrigation water would not constitute a change of this “system” and thus does not require approval of a new “reasons” exception.

Area(s) of Law:
  • Land Use

West v. Multnomah County

In order to be considered to “continue to exist” for purposes of forest template dwelling approval, a dwelling must be in a state of habitability; a dilapidated structure that has been vacant for eighteen years is not sufficient.

Area(s) of Law:
  • Municipal Law

October 4 summaries

Knapp v. Jackson County

Under ORS 197.763(3)(b) and 197.835(4)(a), “applicable criteria” that are required to be listed in a notice of hearing do not include submittal or pre-application requirements.

Area(s) of Law:
  • Appellate Procedure

Early v. Jackson County

A county hearing officer’s determination that requires no interpretation of law, exercise of policy or legal judgment, is not a “land use decision” when the decision merely posits that a particular use of a property is not permitted in that particular zone, and therefore LUBA does not have jurisdiction over such a case.

Area(s) of Law:
  • Appellate Procedure

Carver v. Washington County

A roadway does not need to meet the “adequacy” requirement of a specified width of 22 paved feet under Washington County Community Development Code 501-8.1B(2)(b) if the applicant can show that the inadequate facility meets the criteria set forth in 501-6.1(A)-(D).

Area(s) of Law:
  • Municipal Law

Hess et al v. City of Corvallis

Documents that are not sufficiently described cannot be incorporated into findings of fact, and cannot be relied upon as findings to support a decision when specific challenges are raised with regard to the adequacy of those findings.

Area(s) of Law:
  • Municipal Law

November 3 summaries

Landwatch Lane County v. Lane County

ORS 215.213 governs the approval of nonfarm dwellings on land zoned Exclusive Farm Use contained in “marginal lands” counties; ORS 215.284 only applies to non-marginal lands counties.

Area(s) of Law:
  • Land Use

McLaughlin v. Douglas County

Under ORS 215.283(1)(c), a “utility facility necessary for public service” is not required to be one that serves local or county residents; ORS 215.275(6) includes interstate natural gas pipelines regulated by the Federal Energy Regulatory Commission in the definition of “utility facility necessary for public service.”

Area(s) of Law:
  • Land Use

Ooten v. Clackamas County

Under OAR 660-004-0018, a previously taken statewide planning goal exception does not remove the subject property from the necessity of further exceptions to redesignate and rezone from Rural Residential Farm Forest to Rural Industrial.

Area(s) of Law:
  • Land Use

December 8 summaries

Del Rio Vineyards LLC v. Jackson County

A prior land use decision requiring an easement for mining access does not authorize or approve the use of an existing haul road absent specific description of the haul road in conjunction with the easement requirement.

Area(s) of Law:
  • Land Use

Tolbert v. Clackamas County

A standard which requires a county to determine whether a modification is consistent with “all provisions [of the code] in effect on the date the modification request is submitted” does not require assessment of all aspects of the proposal not affected by the modification absent issues that could not have been raised under the previous proposal.

Area(s) of Law:
  • Appellate Procedure

Devin Oil Co. Inc. v. Morrow County

Where an ordinance extending the time period of a permit does not expressly state or otherwise suggest that it is intended to apply retroactively, a permit that has expired cannot be revived by filing an application for extension within the new time period.

Area(s) of Law:
  • Municipal Law

Dion v. Baker County

When a local body determines that an issue has been waived, the issue is not considered preserved for LUBA review unless a successful challenge to the original determination of waiver has been brought.

Area(s) of Law:
  • Appellate Procedure

Rushing v. City of Salem

City of Salem’s decision to approve demolition of Howard Hall by Salem Hospital was reasonable and supported by sufficient evidence, challenges merely pointed to conflicting evidence without support of its own.

Area(s) of Law:
  • Land Use

Reading v. Douglas County

Statewide Planning Goal guidelines are advisory in nature and are not a source of mandatory approval criteria, and a challenge based on failure to satisfy specific language in the guidelines will fail.

Area(s) of Law:
  • Land Use

SCAN v. City of Salem

Under Salem Revised Code 133, minimum and maximum parking requirements are to be calculated based on the needs of the development and buildings to be served by the parking spaces; an entire campus under common ownership does not constitute a “single development” for purposes of this calculation.

Area(s) of Law:
  • Land Use

Weston Kia v. City of Gresham

When a code revision omits language which changes the scope of its application, intentionally or otherwise, it is error for a hearings officer to reinsert the language that is now missing while interpreting the code.

Area(s) of Law:
  • Municipal Law