Evans v. City of Bandon

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 10-12-2016
  • Case #: 2016-034
  • Judge(s)/Court Below: Opinion by Holstun
  • Full Text Opinion

Once a LUBA appeal is perfected to challenge a land use decision at LUBA, a local government does not have jurisdiction to take further action regarding the subject of the appeal until LUBA resolves the issue.

     Nancy Evans (petitioner) appealed a city council decision, which granted conditional use approval to construct a dwelling in the 100-year floodplain. The city’s decision came after LUBA’s remand in Pennock v. City of Bandon, 72 Or LUBA 379 (2015). In order to comply with a sewer-funding grant, the city adopted Resolution 95-12, which states that the city may not provide sewer service to new structures within the 100-year floodplain in an effort to restrict development, except within the South Jetty Sewer Improvement District boundaries. The subject property in Pennock was within the 100-year floodplain and outside the improvement district boundaries.

     The petitioner alleged four assignments of error. Among these allegations, the petitioner argued that the city lacked jurisdiction to adopt resolution 15-10 because it was adopted “after the appeal to LUBA in Pennock was perfected and before LUBA issued its decision…” Resolution 15-10 adjusted the South Jetty Sewer Improvement boundary line to include the subject property. LUBA held that once a LUBA appeal is perfected to challenge a land use decision at LUBA, a local government does not have jurisdiction until LUBA resolves the appeal. LUBA disagreed with the petitioner and held that the city did not take further action on the site plan and conditional use permit that was the subject of the appeal, as the city did in Pennock. Resolution 15-10 expanded the boundary but did not change the site plan approval in any way. LUBA denied the third assignment of error.

     LUBA also determined that the petitioner’s argument that Resolution 15-10 should not have included the subject property was a collateral attack and not properly presented in this appeal. LUBA denied the fourth assignment of error and affirmed the city’s decision. AFFIRMED.