Oregon Land Use Board of Appeals

2016

January 4 summaries

Meyer v. Jackson County

Under Jackson County Land Development Ordinance (LDO) 11.2.1(A) an existing nonconforming use may be changed "to another, no more intensive nonconforming use" if "the proposed new use will have no greater adverse impact on the surrounding neighborhood[,]" and where a change from a nonconforming concrete batch plant to a nonconforming asphalt batch plant results in a greater risk of fire and explosion to a surrounding neighborhood it will be deemed to have a greater adverse impact on the surrounding neighborhood.

Area(s) of Law:
  • Municipal Law

Grabhorn Inc. v. Washington County

Pursuant to Oregon v. Portland Gen. Elec. Co., 52 Or 502 (1908), a petitioner bringing an equitable estoppel claim against a local government must establish that (1) the local government made a false representation; (2) the false representation was made with knowledge of the facts; (3) the petitioner was ignorant of the truth; (4) the false representation was made with the intention that it should be acted upon by the petitioner; and (5) the petitioner was induced to act upon the false representation; where any one of the elements are not met, estoppel will not lie against the local government.

Area(s) of Law:
  • Land Use

Oregon Coast Alliance v. Curry County

Pursuant to OAR 660-033-0130(2)(a), no enclosed structures or group of structures that exceed a "design capacity" of 100 people may be approved by a local government within three miles of an urban growth boundary, and where a local government finds that the cumulative design capacity of structures on a proposed golf course will not exceed 100 people, the proposed golf course will be deemed compliant.

Area(s) of Law:
  • Land Use

J. Conser and Sons LLC v. City of Millersburg

When a local government denies an application for a planned development, that decision must include findings sufficient to apprise the applicant of what steps might be taken to obtain approval or inform the applicant that it is unlikely the application will be approved.

Area(s) of Law:
  • Land Use

February 3 summaries

Emerald Cove LLC v. City of Lincoln City

Petitioners seeking review by LUBA have the burden of establishing that LUBA has jurisdiction; accordingly, when a petitioner cannot carry its burden, that petitioner's appeal will be dismissed.

Area(s) of Law:
  • Land Use

McLoughlin Neighborhood Association v. City of Oregon City

The “significant impacts” test operates only where no land use regulation, comprehensive plan provision, or statewide planning goal applies to the challenged decision but, nevertheless, the decision actually changes present or future land uses; where a petitioner invokes the significant impacts test, that petitioner must identify the non-land use standards that allegedly apply to the decision (and would be the subject of LUBA’s review) and demonstrate that those standards have some relationship to or bearing on land use, otherwise the significant impacts test will not be met. See, e.g., Northwest Trail Alliance v. City of Portland, __ Or LUBA __ (LUBA No. 2015-015, June 3, 2015).

Area(s) of Law:
  • Land Use

Rogue Advocates v. Josephine County

Pursuant to OAR 661-010-0010(3), and unless a local rule or ordinance provides for a later date, a local government decision becomes final when it is reduced to writing and bears the necessary signatures of decision maker(s); therefore, when a local rule or ordinance additionally provides that a written decision must be prepared and approved by a majority vote of the participating members of the hearing body, the local government’s decision will not be deemed “final” for the purposes of administrative and local rules until it is at least reduced to writing, notwithstanding other criteria.

Area(s) of Law:
  • Land Use

March 5 summaries

Fernandez v. City of Portland

When reviewing substantial evidence challenges to critical findings of fact, the standard that LUBA is required to apply is whether the local government’s findings are supported by the evidentiary record, viewed as a whole, and in reviewing such challenges LUBA cannot reweigh evidence or assess whether it would have adopted the same findings but must rather determine whether the findings were “reasonable” based on the evidence presented; where a local government’s findings are supported by credible expert evidence that contradicts contentions to the contrary, the local government’s findings will likely be deemed supported by substantial evidence. See, e.g., Younger v. City of Portland, 305 Or 346 (1988); Dodd v. Hood River County, 317 Or 172 (1993); and, 1000 Friends of Oregon v. Marion County, 116 Or App 584 (1992).

Area(s) of Law:
  • Land Use

Chapman and Chapman LLC v. Coos County

Under OAR 661-010-0015(1)(a), a notice of intent to appeal (NITA) must be filed within 21 days of a local government's final decision, and where a petitioner files a NITA through a filing method other than "registered or certified mail," pursuant to OAR 661-010-0015(1)(b) the date of filing will be the date that LUBA actually receives the NITA (as opposed to the date that the NITA is mailed as applies to filings by registered or certified mail).

Area(s) of Law:
  • Land Use

Altamont Homeowners Association v. City of Happy Valley

Notwithstanding Clackamas County's status as a party to the Urban Growth Management Agreement (UGMA) between Oregon City and the county, the county's status as a party to the UGMA does not automatically satisfy the statutory obligation under ORS 222.125 that the city obtain written consent from the county before annexing county property.

Area(s) of Law:
  • Municipal Law

Laurel Hill Valley Citizens v. City of Eugene

Pursuant to the "exhaustion-waiver" principles articulated in Miles v. City of Florence, 190 Or App 500 (2003), where local appeal regulations require specification of the issues on appeal, a petitioner must first specify an issue on local appeal in order to preserve that issue before LUBA, and where a petitioner fails to do so the issue will be deemed waived.

Area(s) of Law:
  • Land Use

Woodward v. Jackson County

Pursuant to ORS 195.318(1), a local government's application of certain local land use regulations to approve a subdivision or partition of property or the establishment of one or more dwellings on a property under sections 5 to 11 of Ballot Measure 49 (2007) is not a "land use decision" as defined at ORS 197.015(10)(a)(A), and where a local government makes such a determination LUBA will lack jurisdiction to hear appeals thereof.

Area(s) of Law:
  • Land Use

April 4 summaries

Pinnacle Alliance Group LLC v. City of Sisters

Under ORS 197.830(3), a petitioner must establish how land uses authorized by a local government's administrative extension of a master plan for a mixed use development adversely affects its interests, and where a petitioner asserts an impact without any explanation as to why the impact is adverse and how the decision results in an adverse impact, such an assertion will be deemed insufficient to establish standing under ORS 197.830(3).

Area(s) of Law:
  • Land Use

Pinnacle Alliance Group LLC v. City of Sisters

Pursuant to ORS 197.835(11)(b), LUBA may overlook minor discrepancies in a local government's findings; however, the statute does not permit LUBA to overlook a local government's total failure to adequately identify any findings, particularly when it is unclear in the record as to which document comprising the alleged findings the local government relied upon in making its decision.

Area(s) of Law:
  • Land Use

Forest Park Neighborhood Association v. Washington County

Pursuant to Statewide Planning Goal 2 (Land Use Planning), legislative land use decisions must be supported by an "adequate factual base" (functionally equivalent to the substantial evidence standard applicable to review of quasi-judicial decisions), and where a reasonable person could not reach the same conclusion as the local government based on the evidence in the record, LUBA will hold such a decision as lacking the necessary evidentiary support.

Area(s) of Law:
  • Land Use

Trautman v. City of Eugene

Under Eugene Code (EC) 9.8320(5), the city must find that a planned unit development (PUD) provides safe and adequate transportation systems through compliance with EC 9.6800 through EC 9.6875 (standards for streets, alleys, and other public ways), and where the city determines that because streets, alleys, and other public rights of way to be dedicated to the public by the applicant as a condition of development will meet minimum city standards prior to the city's acceptance of them, the standards of EC 9.6800 through EC 9.6875 will be deemed met and the PUD will be deemed to meet the requirements of EC 9.8320(5).

Area(s) of Law:
  • Municipal Law

May 6 summaries

Lennar Northwest, Inc. v. Clackamas County

When a hearings officer evaluates factors in considering a zone change application, the factors must be evaluated in accordance with the comprehensive plan of the location, and the hearings officer may not give dispositive weight to one factor when different weights are not delineated in the Clackamas County Zoning and Land Development Ordinance (ZDO).

Area(s) of Law:
  • Municipal Law

Jacobs v. Clackamas County

Clackamas County Zoning and Development Ordinance (ZDO) 822.05 (home occupation standards and limitations) applies to any space, equipment or vehicle even when the space, equipment or vehicle is similarly used under an approved conditional use permit, and when the same activity is subject to multiple permit approval standards, the more restrictive ZDO standard controls.

Area(s) of Law:
  • Land Use

Balsly v. Benton County

When a local government interprets the provisions of its land use development code and exercises legal judgment, the decision does not fall within ORS 197.015(10)(b)(A).

Area(s) of Law:
  • Land Use

Burgermeister v. Tillamook County

A local government’s findings in support of a land use decision must identify relevant approval standards, set out facts believed and relied upon, and explain how those facts underpin the decision, and, pursuant to ORS 197.835(11)(b), LUBA will not affirm a decision based on insufficient findings except where a finding of compliance with the applicable criteria is either obvious or inevitable. See Heiller v. Josephine Cnty., 23 Or LUBA 551 (1992); see also Marcott Holdings, Inc. v. City of Tigard, 30 Or LUBA 101 (1995) and Terra v. City of Newport, 36 Or LUBA 582 (1999).

Area(s) of Law:
  • Land Use

Del Rio Vineyards, LLC v. Jackson County

When a local government approves an application allowing aggregate extraction related activities, that decision must include findings that are consistent with the applicable local regulations, and the burden of proof must not be improperly placed upon the incorrect party.

Area(s) of Law:
  • Land Use

Kliewer v. City of Bend

Under Bend Development Code 10.20.050.C.1, when the construction of a new structure on the same property as an existing historic dwelling is proposed, the proposed dwelling must comply with the applicable city code in regard to compatibility with appearance and character.

Area(s) of Law:
  • Municipal Law

June 3 summaries

Landwatch Lane County v. Lane County

Pursuant to Lane County Rural Comprehensive Plan (RCP) Goal 5 and Flora and Fauna Policy 11, Oregon Department of Fish and Wildlife recommendations must be considered with regard to proposed increases in overall residential density for properties inventoried in the RCP as Big Game Habitat.

Area(s) of Law:
  • Municipal Law

GPA 1, LLC v. City of Corvallis

Under ORS 197.835(10)(a)(A) LUBA must reverse a local government decision and order a local government to approve an application for development if LUBA finds that the local government decision is outside the range of discretion allowed to the local government per the city’s comprehensive plan.

Area(s) of Law:
  • Land Use

Walter v. City of Eugene

A city’s comprehensive planning and implementing ordinances must employ “clear and objective standards” within the meaning of ORS 197.307(4), and not be so ambiguous that they allow for discretionary decision making.

Area(s) of Law:
  • Land Use

July 5 summaries

Stop the Dump Coalition v. Yamhill County

Under ORS 215.296(1), when a county makes a determination of whether to approve or deny a proposed project in an exclusive farm use zone, the county must assess both the individual impacts to particular farm owners and the cumulative impacts of the proposed project.

Area(s) of Law:
  • Land Use

Rogue Advocates v. Jackson County

Local government decisions which verify or alter non-conforming uses of property must apply the appropriate statutory framework, which includes ORS 197.763 (notice and hearing requirements), ORS 215.130 (state requirements for nonconforming use statutes), and the applicable local land development ordinance.

Area(s) of Law:
  • Land Use

Frewing v. City of Portland

The number of lots dictating the procedure to be used under Portland City Code (PCC) 33.660.110(A)(2) includes only those lots that are being proposed and not those that are preexisting, and the definition of “lot” in PCC 33.910.030 excludes “tract.”

Area(s) of Law:
  • Municipal Law

Mann v. Marion County

When a petitioner fails to properly serve notice of intent to appeal on the governing body, the governing body’s legal counsel, and all persons identified in the notice, pursuant to OAR 661-010-0015(2), and fails to advise LUBA that it has done so, LUBA lacks jurisdiction to hear the appeal.

Area(s) of Law:
  • Land Use

Mintz et al v. City of Beaverton

When a local government withdraws its decision for reconsideration, the petitioner must either refile its original notice of intent to appeal in the matter, or file an amended notice of intent to appeal; if neither is filed, the appeal will be dismissed under OAR 661-010-0021(5)(e).

Area(s) of Law:
  • Land Use

August 11 summaries

Land Watch Lane County v. Lane County and the City of Coburg

Directive 4, Goal 9 of Oregon's Statewide Planning Goals, which requires that local governments “[l]imit uses on or near sites zoned for specific industrial and commercial uses to those which are compatible with proposed uses,” is restricted to “specific commercial or industrial uses with special site requirements,” and in order for directive 4 of Goal 9 to be applicable, it must be demonstrated that the relevant zoning requirements apply.

Area(s) of Law:
  • Land Use

Tokarski et al v. City of Salem

The standards contained in Salem Revised Code (SRC) 210.035 apply only when evaluating applications for planned urban development (PUD) modifications; simple lot replats and subdivisions are reviewed under SRC 205.010.

Area(s) of Law:
  • Land Use

Setniker v. Polk County

LUBA does not have jurisdiction to review a non-final land use decision, and where a local zoning ordinance requires additional procedures on remand for a decision to become a "final" decision, LUBA must assess whether the decision is final for the purposes of the local zoning ordinance and whether the decision is a "land use decision" under ORS 197.015(10)(a) for purposes of appeal to LUBA.

Area(s) of Law:
  • Land Use

Bristol Creek Homes & Development

A decision concerning a request for placing an encroachment within the right-of-way of a sidewalk concerns the maintenance and preservation of a transportation facility for purposes of ORS 197.015(10)(b)(D), and is therefore outside of LUBA’s jurisdiction.

Area(s) of Law:
  • Land Use

Talbott v. City of Happy Valley

ORS 197.763(3)(b) does not require that the city list all potentially applicable state statutes in its notice of hearing, and the omission of Oregon’s needed housing statute (ORS 197.303) is not a procedural error that prejudices the right of the petitioner to submit evidence and testimony related to “needed housing,” and does not provide a basis for remand of the decision.

Area(s) of Law:
  • Land Use

Central Oregon Landwatch v. Deschutes County

When an irrevocably committed exception to Goal 14 is granted, OAR 660-014-0030(3) and (4) require that the exception be based on all four OAR 660-014-0030(3) factors, and that there is a “a statement of reason explaining why the facts found support the conclusion that the land in question is committed to urban uses and urban level development rather than a rural level of development.”

Area(s) of Law:
  • Land Use

Nicita v. City of Oregon City

Pursuant to ORS 197.829(1), the Land Use Board of Appeals should defer to a local government’s interpretation of its own comprehensive planning goals.

Area(s) of Law:
  • Land Use

Kuhn v. Deschutes County

Ambiguous language in a condition of land use approval is analyzed using statutory interpretation methods, and is not evaluated using techniques for interpreting an ambiguous contract, as a condition of land use approval is not an agreement between two or more parties.

Area(s) of Law:
  • Land Use

Harrison v. City of Cannon Beach

Under ORS 197.829(1), and as it was interpreted in Siporen v. City of Medford, when a city council is approving or denying a planned development, the city council’s interpretation of its municipal code must be given deference. See Siporen v. City of Medford, 349 Or 247, 259 (2010).

Area(s) of Law:
  • Land Use

Rogue Advocates v. Jackson County

Jackson County Land Development Ordinance 6.4.2(D) does not allow the establishment of accessory uses, such as processing aggregate material or material that is not “naturally occurring,” unless a primary or principle use is established first, such as aggregate mining on the site.

Area(s) of Law:
  • Municipal Law

Central Eastside Industrial Council v. City of Portland

Under ORS 197.829 (1)(a), LUBA must affirm a governing body’s code interpretation unless it is inconsistent with the language, context, purpose, or policy of the underlying provision; a city need only show that its interpretation is “plausible”. See Siporen v. City of Medford, 349 Or 247, 243 P3d 776 (2010).

Area(s) of Law:
  • Land Use

September 9 summaries

Friends of Yamhill County v. Yamhill County

To determine the meaning of a statute, a local government must determine “the legislature’s intent and the voters’ intent in adopting the measure, looking at the text, context, and legislative history…,” and if necessary, resort to traditional maxims of statutory interpretation.

Area(s) of Law:
  • Land Use

Pinnacle Alliance Group LLC v. City of Sisters

Sisters Development Code 4.3.400.F only allows two one-year extensions of tentative subdivision plan approvals for multi-phase subdivision proposals.

Area(s) of Law:
  • Municipal Law

Wood v. Crook County

When a county amends a local zoning ordinance, the county must comply with its planning policies and comprehensive plan provisions, as well as the statewide planning goals, and where a county's zoning amendment complies with all applicable land use planning laws and rules, the county's zoning amendment decision will withstand challenges thereto at LUBA.

Area(s) of Law:
  • Land Use

Diesel v. Jackson County

ORS 197.620(1) provides LUBA with jurisdiction to review county decisions that adopt a legislative amendment, regardless of whether the amendment change the status quo.

Area(s) of Law:
  • Land Use

LandWatch Lane County v. Lane County

Under OAR 660-033-0140(1) and (2) a permit is void two years after the final decision, unless the development action is “initiated” within that time period; however, simply initiating the development action within the time period is not sufficient to render the permit valid indefinitely, and may require extensions in order to proceed.

Area(s) of Law:
  • Land Use

Martin v. City of Central Point

A city decision is considered to be supported by substantial evidence when the evidence is that which a reasonable person would rely on in making a decision. See Dodd v. Hood River County, 317 Or 172, 179, 855 P2d 608 (1993).

Area(s) of Law:
  • Land Use

Central Land and Cattle Company v. Deschutes County

A county hearings officer must comply with LUBA’s directions on remand and must accept new evidence in accordance with LUBA’s instructions and the applicable county code.

Area(s) of Law:
  • Land Use

Grimstad v. Deschutes County

ORS 197.835(11)(b) only allows LUBA to overlook inadequate findings when the evidentiary record “clearly supports” the county’s decision.

Area(s) of Law:
  • Land Use

MGP X Properties LLC v. Washington County & City of Sherwood

Under ORS 197.830(3), when a local government makes a land use decision without providing a hearing, in order to challenge the decision, a petitioner must show that it was adversely affected by the decision.

Area(s) of Law:
  • Land Use

October 4 summaries

Kaplowitz v. Lane County

Under ORS 197.829(1), a local government’s decision interpreting a local code is entitled to deference, so long as the resolution is plausible. See Siporen v. City of Medford, 349 Or 247, 258 (2010).

Area(s) of Law:
  • Land Use

Kine v. City of Bend

On remand, LUBA must apply a deferential standard of review to a governing body’s interpretation of its comprehensive plan policies. ORS 197.829(1).

Area(s) of Law:
  • Land Use

Evans v. City of Bandon

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.

Area(s) of Law:
  • Land Use

Reinert v. Clackamas County

Clackamas County Zoning and Development Ordinance 1307.16(K) restrictions on the re-filing of a Type II or III land use permit, requiring that two years pass before a substantially similar application is re-filed, means a “high degree of similarity” between the two applications, which is evaluated by comparing characteristics of the application such as number of lots, average lot sizes, traffic patterns, and on-street parking.

Area(s) of Law:
  • Municipal Law

November 7 summaries

Central Oregon Landwatch v. Deschutes County

In order for a Goal 11 exception to be granted, which allows an otherwise prohibited sewer system, OAR 660-011-0660(9)(a) requires that there be more than an abstract public health concern identified to justify the exception.

Area(s) of Law:
  • Land Use

Neil v. Columbia County

Under ORS 197.829(1), LUBA must affirm a county board of commissioners’ interpretation of its code provision, unless the interpretation is inconsistent with the express language, purpose or policy underlying the code provision.

Area(s) of Law:
  • Land Use

Benson v. Jackson County

Under OAR 661-010-0030(1) a petition for review must be filed with LUBA within 21 days after the date that the record is received or settled by the Board, and failure to do so, or receive an extension under OAR 661-010-0067(2), will lead to dismissal of the appeal.

Area(s) of Law:
  • Land Use

MGP X Properties LLC v. City of Sherwood

In arguing that a decision is a final land use decision that LUBA has jurisdiction to review, the moving party has the ultimate burden of showing that none of the “ministerial” exceptions apply under ORS 197.015(10)(b).

Area(s) of Law:
  • Land Use

Graser-Lindsey v. City of Oregon City

Under Metro Code 3.07.1120(c)(1), the city’s plan must be “derived from and generally consistent with the boundaries of design type designations assigned by the Metro Council in the ordinance adding the area to the UGB,” as that ordinance is amended by Metro under MC 3.07.450.

Area(s) of Law:
  • Municipal Law

Kartavykh v. Clackamas County

Under Clackamas County Zoning and Development Ordinance 1307.16(K)(2)(b), a decision based on inconsistent testimony is different than a decision based on a “mistake of material fact,” and does not meet the refiling exception.

Area(s) of Law:
  • Municipal Law

GPA1 LLC v. City of Corvallis

When a conceptual location for a road has been approved in in multiple city plans, such as the Corvallis Transportation Plan, the North Corvallis Area Plan, and the Conceptual Development Plan, in order to comply with the acknowledged plan and land use regulations pursuant to ORS 197.175(2)(d), the city has a heightened obligation under Commonwealth Properties v. Washington County, 35 Or App 387 (1978) to either: (1) approve the petitioner’s proposed alignment that is consistent with the planned and approved location, or (2) make it very clear to the petitioner which alternative alignment the city will accept.

Area(s) of Law:
  • Land Use

December 3 summaries

Central Oregon Landwatch v. Deschutes County

ORS 197.450 expressly allows for the “siting of a destination resort” on rural lands without taking an exception to the applicable statewide planning goals, if the resort is in accordance with all applicable statutes.

Area(s) of Law:
  • Land Use

Gross v. Jackson County

The agricultural building exemption located in ORS 455.315(1) applies when the buildings at issue are located on a farm, regardless of the land’s zoning designation.

Area(s) of Law:
  • Land Use

McCollough v. City of Eugene

When there is ambiguity or doubt about compliance with a city code provision, the issue will be remanded for the local government to resolve.

Area(s) of Law:
  • Municipal Law