Oregon Land Use Board of Appeals

2015

January 8 summaries

Carver v. Washington County

Under OAR 661-010-0010(3), the date of decision for purposes of filing a notice of intent to appeal is the signing date of the decision despite a different date contained in the notice of decision sent to a party.

Area(s) of Law:
  • Appellate Procedure

Oregon Coast Alliance v. City of Brookings

The appropriate time for a determination of whether development allowed under proposed zoning will comply with statewide planning goals is when the zoning is adopted.

Area(s) of Law:
  • Land Use

Phillips v. City of Happy Valley

Under ORS 197.830(3), an extension for the deadline of filing a notice of intent to appeal is not available when the city provided notice of a hearing and then adopted an ordinance consistent with the notice and hearing.

Area(s) of Law:
  • Appellate Procedure

LaBare v. Clackamas County

Under Clackamas County ZDO 1107.04(B)(2)(b) “each property” refers back to the two units of property that are the subject of the property line adjustment application.

Area(s) of Law:
  • Municipal Law

S. St. Helens LLC v. City of St. Helens

Under St, Helens Municipal Code 17.32.140(2)(i), the city’s construction of the term “natural mineral resources development” to characterize “rock” as a “mineral” is acceptable, particularly where the city has adopted the normal dictionary definition as a rule of construction and the proposal at issue seeks to remove an amount of rock one hundred times greater than the quantity considered as “surface mining” under ORS 517.755(15)(a).

Area(s) of Law:
  • Municipal Law

Dilley et al v. City of North Bend

Under North Bend City Code, 18.92.020, filling out a sign-in sheet to receive notice of the decision can be considered “requested notice” to satisfy the requirement of establishing “party status” to appeal.

Area(s) of Law:
  • Appellate Procedure

Pioneer Asphalt Inc. v. Umatilla County

Under OAR 660-023-0180(5)(g), the term “currently approved” can be supported by substantial evidence that the operator held a conditional use permit issued by the county, and the operator is in good standing with the conditions placed on the permit.

Area(s) of Law:
  • Land Use

Gould v. Deschutes County

Under Deschutes County Code, 22.36.020(A), the two pronged approach to determine whether development action has been “initiated” under a land use approval to “substantially exercise” all required conditions must be taken as a whole and not individually whereas “fault of the applicant “ does need to be applied to each condition.

Area(s) of Law:
  • Municipal Law

February 3 summaries

Squier v. Multnomah County

Repeal and re-adoption of county ordinances acknowledged to be in compliance with statewide planning goals, that do not materially alter the provisions of those ordinances, do not “de-acknowledge” those ordinances from compliance with those goals.

Area(s) of Law:
  • Land Use

H.T. Rea Farming Corp. v. Umatilla County

When a county has amended its development code to conform to provisions of an Oregon Administrative Rule, the county must apply its own development code rather than the rule in permit approvals; failure to specifically provide for expansion of a use in its own development code is not grounds for the county to rely solely on the Rule for approval.

Area(s) of Law:
  • Land Use

The Flight Shop Inc. v. Deschutes County

Under Deschutes County Code 18.76, the Airport Master Plan, and the Airport Development Zone regulations, “Fuel Storage” is an outright permitted use without any approval criteria, and is not considered a “facility” under Chapter 5, Subchapter 5.6, Goal 16, Policy 16.2(h) of the county’s transportation system.

Area(s) of Law:
  • Municipal Law

March 3 summaries

Rogue Advocates v. Jackson County

When a hearings officer’s decision is not required to specify the precise nature and extent of a nonconforming use, findings that would be relevant to a future application are dicta which do not provide a basis for reversal or remand on a challenge to the sufficiency of the evidence.

Area(s) of Law:
  • Land Use

Mackenzie v. City of Portland

When a petitioner withdraws a petition for appeal, the arguments made in that appeal are waived with respect to a different petitioner who attempts to incorporate those arguments without having preserved the issue themselves.

Area(s) of Law:
  • Appellate Procedure

Smalley v. Benton County

Under ORS 215.306, “on-site filming” which does not require approval in EFU zones does not include the filming of events for documentary purposes where the event is the primary purpose and the filming of the event is secondary, particularly when the recording is not created for public distribution.

Area(s) of Law:
  • Land Use

April 5 summaries

Smith v. City of Gearhart

Under Gearhart Zoning Ordinance 12.060(7), the city council must make a decision on review that includes findings and if remanded, a statement explaining the reasons; not reaching a vote constitutes failure to make the decision.

Area(s) of Law:
  • Municipal Law

LO 138 LLC v. City of Lake Oswego

The definition of “village character” in the Lake Oswego Downtown Redevelopment Design District does not create mandatory approval standards beyond those contained in the Lake Oswego Code.

Area(s) of Law:
  • Municipal Law

Seabreeze Associates Limited v. Tillamook County

Statewide Planning Goal 10 (Housing) applies to rural unincorporated communities if residential lands in those communities were used in the county’s inventory of buildable lands required by Goal 10.

Area(s) of Law:
  • Land Use

Oregonians in Action Legal Center v. City of Lincoln City

In relation to the Lincoln City ordinances, LUBA clarified that the needed housing statute, ORS 197.303(1), did not extend to vacation homes, and that the Housing Element referencing “seasonal residents seeking shelter” was limited to part-time residents and excluded temporary tourists.

Area(s) of Law:
  • Municipal Law

Oregon Pipeline Company, LLC. v. Clatsop County

Consistent with OAR 660-006-0025(4)(q) and pursuant to ORS 197.835(9)(a)(D), a county may properly permit natural gas transmission lines in Agricultural Forest (AF) and Forest-80 (F-80) zones.

Area(s) of Law:
  • Land Use

May 4 summaries

Stevens v. City of Island City

Island City Development Code (ICDC) 2.02(E) does not require the city council to defer to an interpretation made by the planning official or planning staff, nor does ICDC 2.02(E) require the city council to end the interpretative process at the planning official’s desk.

Area(s) of Law:
  • Municipal Law

Stavrum v. Clackamas County

Clackamas County Zoning and Development Ordinance (ZDO) 309.03(F) specifically addresses the exact use and definition of “stables,” and allows non-commercial stables as a primary use (as contrasted with ZDO 309.05(A)(14), which treats commercial stables as a conditional use).

Area(s) of Law:
  • Municipal Law

Oakleigh-McClure Neighbors et al v. City of Eugene

Failure to provide an intervening party with notice of a hearings officer’s decision and with notice of an appeal hearing prejudices the intervening party’s right to participate in the planning commission hearing on the appeal of that hearings officer’s decision.

Area(s) of Law:
  • Land Use

Oregon Coast Alliance v. Curry County

Under OAR 660-033-0130(2)(a), “design capacity” cannot be properly determined based on the applicant’s representations under normal operation regarding the number of likely users of a structure (e.g., a proposed golf course).

Area(s) of Law:
  • Land Use

June 3 summaries

Widgi Creek Homeowners v. Deschutes County

When an issue has been decided in a prior proceeding, the prior decision on that issue may preclude relitigation of the issue if five requirements are met: (1) the issue in the two proceedings is identical; (2) the issue was actually litigated and was essential to a final decision on the merits in the prior proceeding; (3) the party sought to be precluded had a full and fair opportunity to be heard on that issue; (4) the party sought to be precluded was a party or was in privity with a party to the prior proceeding; and (5) the prior proceeding was the type of proceeding to which preclusive effect will be given.

Area(s) of Law:
  • Land Use

Northwest Trail Alliance v. City of Portland

LUBA should exercise review jurisdiction over a decision under the significant impacts test only if the petitioner identifies the non-land use standards that the petitioner believes apply to the decision and would govern LUBA’s review.

Area(s) of Law:
  • Land Use

Truth in Site v. City of Bend

Plats are not “land use regulation[s]” under ORS 197.015(11), and are therefore are not reviewable by LUBA under ORS 197.828(2)(b) because challenges based thereupon provide no basis for reversal or remand of the decision.

Area(s) of Law:
  • Land Use

July 1 summary

Wal-Mart Stores, Inc. v. City of Hood River

The general principles of nonconforming uses (including discontinuance) apply to vested rights, at least for those counties subject to ORS 215.130, the statute that provides for nonconforming uses.

Area(s) of Law:
  • Land Use

August 6 summaries

Devin Oil Co. v. Morrow County

A petitioner is “adversely affected” when a local land use decision impinges upon the petitioner’s use and enjoyment of his or her property, or otherwise detracts from interests personal to the petitioner (adverse affects may include noise, odors, increased traffic, and potential flooding).

Area(s) of Law:
  • Land Use

Graser-Lindsey v. City of Oregon City

Under Oregon City Comprehensive Plan Policy 14.3.4, the entity responsible for a new development must bear the cost of providing new public services and improvements to existing public services resulting from the new development to the maximum extent allowed under state law for Systems Development Charges.

Area(s) of Law:
  • Municipal Law

Central Oregon Landwatch v. Deschutes County

Under OAR 660-023-0180(5)(a), a petitioner must establish that “factual information indicates significant potential conflicts” with agricultural practices such that the 1,500 foot impact area under the rule should be enlarged.

Area(s) of Law:
  • Land Use

Central Oregon Landwatch v. Deschutes County

ORS 215.283(2)(c) demonstrates that the adjective “private” is intended to distinguish privately-owned and managed recreational lands from publicly-owned and managed recreational lands, rather than pertaining to the exclusion of the public in general.

Area(s) of Law:
  • Land Use

Lenahan v. Wallowa County

Subsection (3)(a) of section 11 of Measure 49 provides that a new lot or parcel on resource land may not exceed two acres if the lot or parcel is located on high-value farmland, and, pursuant to ORS 195.318(1), a determination by a public entity under sections 5 to 11 of Measure 49 is not a “land use decision” as defined in ORS 197.015(1)(a)(A).

Area(s) of Law:
  • Land Use

Group B, LLC v. City of Corvallis

Under ORS 197.307(4), “a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of needed housing on buildable land” and where a local government must interpret a provision of a land use regulation such a land use regulation is not clear and objective unless the local government proves otherwise.

Area(s) of Law:
  • Land Use

September 7 summaries

Space Age Fuel, Inc. v. Umatilla County

Under ORS 197.835(11)(b), LUBA may overlook a local government’s “defective” findings if a party can identify evidence that “clearly supports” the local government’s decision or part of the decision.

Area(s) of Law:
  • Land Use

Bishop et al v. Deschutes County

A local government's decision is excluded from the definition of a "land use decision" under ORS 197.015(10)(a) if the decision requires future land use review pursuant to ORS 197.015(10)(b)(H)(iii).

Area(s) of Law:
  • Land Use

Treadway et al v. Jefferson County

When read together, the language in JCZO 301.6(J)(4) and JCZO 301.6(J)(2), pertaining to temporary medical hardship dwellings, suggests a temporal nexus that requires that a permanent dwelling must exist on the property “at such time as” (or “when”) “the hardship ends” and that the permanent dwelling must be removed within three months after the hardship ends.

Area(s) of Law:
  • Municipal Law

Kovash v. Columbia County

In Davis v. City of Bandon, 19 Or LUBA 327, 336 (1991), LUBA explained that before existing development ordinances and regulations are suspended by way of a moratorium, they must be shown to be inadequate. ORS 197.520(3)(a)(A), (b)(A). Moreover, for a moratorium to be valid—even if the ordinances and regulations are inadequate—alternative methods of achieving the objectives of the moratorium must be unsatisfactory. ORS 197.520(3)(a)(C), (b)(C).

Area(s) of Law:
  • Municipal Law

King v. Clackamas County

Pursuant to OAR 660-004-0020(2)(c), a local government is not required to evaluate specific alternative sites for a proposed use unless parties identify specific alternative sites and provide evidence that developing those sites with the proposed use would have significantly fewer adverse impacts than the originally proposed site.

Area(s) of Law:
  • Land Use

Sage Equities LLC v. City of Portland

Under Fasano v. Washington County, 264 Or 574 (1973), a petitioner is entitled to an opportunity to respond to new evidence, and where a local government introduces evidence that represents a new issue, a petitioner must be given an opportunity to address the new issue before the local government makes a decision based thereupon; nevertheless, even if a local government makes a decision without giving a petitioner opportunity to address the new issue, such a procedural error requires remand under OAR 661-010-0071(2) rather than reversal under ORS 197.835(10)(a)(A).

Area(s) of Law:
  • Land Use

Harrison v. City of Cannon Beach

Pursuant to Cannon Beach Municipal Code (CBMC) 17.40.020(A)(1), “[p]lanned residential development . . . shall include not less than three acres of contiguous land, unless the planning commission finds that property of less than three acres is suitable by virtue of its unique character, topography or other natural features, or by virtue of its qualifying as an isolated problem area” and where a proposed planned development is shown to possess “unique topography” it may qualify for a “degree of flexibility” consistent with the purposes of the planned development provisions of CBMC 16.04.310.

Area(s) of Law:
  • Municipal Law

October 9 summaries

Phillips v. City of Happy Valley

Notwithstanding the Oregon legislature’s intent for “ORS 197.830(3) to expand the time to file a notice of intent to appeal to LUBA . . . when a hearing is not held in some circumstances or when a party is precluded from participating in a quasi-judicial land use hearing because the notice of the hearing is defective under state law,” ORS 197.830(3)(b) does not operate to expand the time for filing an appeal where a hearing is held.

Area(s) of Law:
  • Land Use

Bend/Sisters Garden RV Resort v. City of Sisters

Pursuant to Sisters Municipal Code (SMC) 5.24.115(1), “[n]o person or other entity shall engage, conduct[,] or participate in the business of a transient merchant in the City without first obtaining a temporary business license,” unless otherwise permitted under SMC 5.24.115(5) because “the transient merchant activity is held in conjunction with a special event for which the sponsoring organization has already secured a special event permit from the City.”

Area(s) of Law:
  • Municipal Law

Devin Oil Co. v. Morrow County

Morrow County Zoning Ordinance (MCZO) 3.090(C)(3) (prohibiting certain “meeting places” within the Aircraft Approach Overlay) does not implement OAR 660-013-0080(1)(a) (requiring local governments to adopt airport compatibility requirements that prohibit “public assembly uses” within the Runway Protection Zone) because MCZO 3.090(C)(3) was adopted in 1980, sixteen years prior to promulgation of OAR 660-013-0080(1)(a); accordingly, so long as the county interprets “meeting place” in a manner consistent with the express language of the MCZO, the county’s interpretation must be affirmed pursuant to ORS 197.829(1)(a), regardless of the definition of “public assembly uses” set out at OAR 660-013-0020(5).

Area(s) of Law:
  • Municipal Law

Oregon Coast Alliance v. City of Brookings

Pursuant to ORS 197.829(1)(d), a local government’s interpretation of one of its comprehensive plan provisions, e.g., a policy, cannot be contrary to the language of the land use goal that the comprehensive plan provision implements.

Area(s) of Law:
  • Land Use

Delta Property Company v. Lane County

LUBA must affirm a local government's interpretations of its own land use legislation unless the interpretation is not "plausible" according to the Supreme Court's decision in Siporen v. City of Medford, 349 Or 247 (2010), or unless one of the exceptions set out in ORS 197.829(1) apply.

Area(s) of Law:
  • Land Use

Gould v. Deschutes County

In determining whether failure to comply with conditions of approval are the "fault of the applicant" under Deschutes County Code (DCC) 22.36.020(A)(3), the county's decision to limit its consideration to the complexity of the county's multi-step destination resort approval process is an implausible interpretation of the DCC.

Area(s) of Law:
  • Municipal Law

Preserve the Pearl LLC v. City of Portland

Under ORS 197.829(1) and Siporen v. City of Medford, 349 Or 247 (2010), a local government can plausibly interpret its own land use regulations by first considering and then choosing between (or harmonizing) conflicting provisions; a local government’s plausible interpretation must be affirmed unless the interpretation is inconsistent with all of the “express language” that is relevant to the interpretation, or is inconsistent with the purposes or policies underpinning the regulations.

Area(s) of Law:
  • Land Use

Rogue Advocates v. Josephine County

If a party’s assertion is cited as an important justification for a plan amendment (e.g., the need for more aggregate sites), and that assertion is essential to a finding of compliance with Josephine County Rural Land Development Code 46.040(D)(2)(which provides that “[t]he more [a] change introduces inconsistent densities and uses into an area, the greater the burden on the applicant to justify the basis for the change”), then there must be substantial evidence on the record to support the assertion.

Area(s) of Law:
  • Municipal Law

Lowry v. City of Portland

Pursuant to OAR 661-010-0030(1), a petition for review must be filed with LUBA "within 21 days after the date the record is received or settled by [LUBA]" and a failure to timely file a petition for review, or an extension under OAR 661-010-0067(2), "shall result in dismissal of the appeal and forfeiture of the filing fee and deposit for costs to the governing body[.]"

Area(s) of Law:
  • Land Use

November 8 summaries

Dion v. Baker County

Pursuant to ORS 197.825(2)(a) and Miles v. City of Florence, 190 Or App 500 (2003), a petitioner must adequately specify the reasons for appeal in the petitioner’s notice of appeal to the local government; if a petitioner fails to adequately raise and exhaust issues during the local appeals process before appealing to LUBA, the petitioner will, in turn, have waived the opportunity to raise such issues before LUBA.

Area(s) of Law:
  • Land Use

Oregon Department of Fish and Wildlife v. Crook County

Although not an express requirement under ORS 197.835(9)(a)(B), LUBA has always required that parties object to procedural errors at the local level, if there was an opportunity to object, so that the local government has an opportunity to correct the alleged procedural errors; it follows that where a party has opportunity to object but fails to do so, that party cannot assign error at LUBA based on those procedural errors. Confederated Tribes v. City of Coos Bay, 42 Or LUBA 385, 391-92 (2002); Torgeson v. City of Canby, 19 Or LUBA 511, 519 (1990); Mason v. Linn County, 13 Or LUBA 1, 4 (1984), aff’d 73 Or App 334 (1985); Meyer v. Portland, 7 Or LUBA 184, 190 (1983), aff’d 67 Or App 274 (1984); Dobaj v. Beaverton, 1 Or LUBA 237, 241 (1980).

Area(s) of Law:
  • Land Use

Stop the Dump Coalition v. Yamhill County

ORS 215.296(1) requires a local government to find that a proposed use will not force significant changes in accepted farm practices, or significantly increase the cost of such practices, on land surrounding the use; in evaluating potential forced changes or cost increases, a local government cannot disregard opponent testimony merely because the testimony does not quantify a cost increase or the precise nature and extent of changes in accepted farm practices, nor can a local government shift the burden of demonstrating noncompliance with ORS 215.296(1) to the opponent.

Area(s) of Law:
  • Land Use

Friends of Yamhill County v. Yamhill County

Pursuant to OAR 661-010-0021(5)(e), when a petitioner fails to file an amended notice of intent to appeal, or fails to refile an original notice of intent to appeal, as provided in OAR 661-010-0021(5)(a), then that appeal will be dismissed.

Area(s) of Law:
  • Land Use

Pennock v. City of Bandon

Under ORS 197.835(3), LUBA's review is limited to the record unless one of the circumstances identified in ORS 197.835(4) applies; when a party relies upon extra-record evidence, that party must argue that one of the circumstances identified in ORS 197.835(4) applies or, absent such an argument, LUBA's review will remain limited to the record.

Area(s) of Law:
  • Land Use

Bartlett v. City of Portland

Under OAR 661-010-0015(1)(a), a notice of intent to appeal (NITA) must be filed with LUBA within 21 days of the date the local government's land use (or limited land use) decision became final; where a petitioner sends a NITA via certified mail within the 21 days, but mails it to an address other than LUBA's current address and as a result LUBA ultimately receives the NITA outside of the 21-day period, the petitioner's appeal will be dismissed as untimely filed.

Area(s) of Law:
  • Land Use

Kandu Ranch, LLC v. Jackson County

ORS 197.665(3), consistent with ORS 215.283(2)(o), allows local governments to approve “a residential home in an existing dwelling” in exclusive farm use (EFU) zones, whereas a “residential facility” is only allowed in residential zones; accordingly, a local government’s approval of an application for a “residential facility” in an EFU zone will be grounds for reversal, pursuant to OAR 661-010-0071(1)(c), as a “violat[ion] of applicable law and [. . .] prohibited as a matter of law.”

Area(s) of Law:
  • Land Use

Sears v. City of Cannon Beach

An action subsequent to adoption of a challenged decision that supplants, revokes, or rescinds the decision may render an appeal to LUBA moot (e.g., an appeal may be moot if the local government withdraws the decision challenged in the appeal).

Area(s) of Law:
  • Land Use

December 4 summaries

Head v. Lane County

Lane Code (LC) 16.211(3)(n)(v) provides, in part, that a proposed home occupation shall not "unreasonably interfere with uses permitted by the zoning of nearby lands" and where a home occupation is determined to likely cause a "significant change in the normal environment of a neighborhood" it will be deemed to constitute an unreasonable interference under LC 16.211(3)(n)(v).

Area(s) of Law:
  • Municipal Law

Stone Age Republic, LLC v. City of Grants Pass

ORS 197.830(9) provides a strict 21-day deadline after the date of a local government's final decision for filing a Notice of Intent To Appeal with LUBA, and where a petitioner relies on a local government's erroneous statement as to the filing deadline, that reliance will not toll the strict 21-day appeal period, regardless of the reasonableness of the petitioner's reliance on the local government's erroneous statement.

Area(s) of Law:
  • Land Use

Jubitz Corp. v. Marion County

The deadline for filing a petition for review under OAR 661-010-0030(1) is strictly enforced, and failure to file a petition for review within 21 days after the date the local record is received or settled by LUBA, and any extensions of that time under OAR 661-010-0067(2), requires that a petition for review be dismissed.

Area(s) of Law:
  • Land Use

Kine v. City of Bend

Under OAR 661-010-0039, a reply brief must be filed within seven days of the date a response brief is filed; however, if a filing deadline occurs on a state or federal legal holiday, OAR 661-010-0075(8) permits a reply brief to be filed on the "next working day."

Area(s) of Law:
  • Land Use