Oregon Land Use Board of Appeals

2017

January 4 summaries

Setniker v. Polk County

ORS 215.431 provides some circumstances where a governing body can delegate to a hearings officer the conduct of hearings on plan amendments, and the authority to render a final decision, but the statute excludes cases involving a comprehensive plan amendment regarding agricultural land; where ORS 215.431(1) does not operate, the governing body cannot delegate to the hearings officer the conduct of hearings and the county’s final decision on a plan amendment.

Area(s) of Law:
  • Land Use

Dodds v. City of West Linn

Under CDC 55.130(B), which requires that grading and drainage plans be (1) submitted by a registered engineer, and (2) supported by factual data, it is insufficient for a party to argue that future, yet to be reviewed plans, will meet the code requirements.

Area(s) of Law:
  • Municipal Law

Nicita v. City of Oregon City

Under OAR 660-023-0250(3)(b), the city may not assume, without more, that previous Goal 5 overlay districts that were applied to protect from low density residential uses, will be adequately protected from commercial higher density development that is made possible by a post-acknowledgment comprehensive plan map amendment and zoning map amendment.

Area(s) of Law:
  • Municipal Law

Bowerman v. Lane County

Under Lane Code 13.450(4)(c), when there there is no dispute that a property line adjustment resulted in nonconforming setbacks, the planning director must provide a hearing on the proposed property line adjustment, or an opportunity for local appeal.

Area(s) of Law:
  • Municipal Law

February 5 summaries

Wiper v. City of Eugene

Under ORS 227.173(3) an application for permit, limited land use decision, or zone change shall be approved or denied based on a brief statement explaining the criteria relevant to the decision and stating the facts relied on to render the decision, and is not required to address standards that might apply to a hypothetical future building permit application for the approved CIR housing.

Area(s) of Law:
  • Land Use

J4J v. City of Jefferson

Under ORS 197.835(9)(a)(B), the Land Use Board of Appeals will reverse or remand a land use decision under review based on procedural errors, only if the Board finds that the local government failed to follow procedural rules which prejudiced substantial rights of the petitioner.

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

ORS 215.750(1)(c), the forest template statute, and OAR 660-006-0005(5) do not prohibit an applicant from relying on a January 1, 1993 configuration of a later-reconfigured parcel, in all circumstances, to fulfill the statute’s minimum eleven lot requirement.

Area(s) of Law:
  • Land Use

Devlin v. Linn County

Under ORS 197.015(10)(b)(A), LUBA does not have jurisdiction over a land use decision if it is made under land use standards that do not require interpretation or the exercise of policy or legal judgment; determining that a property is zoned industrial does not require interpretation or the exercise of policy or legal judgment.

Area(s) of Law:
  • Land Use

Rogue Advocates v. Jackson County

Under ORS 197.835(2), LUBA may exercise its discretion to grant a motion to take additional evidence, unless the party had an opportunity to present evidence during a first appeal, but failed to present it, which would make LUBA’s grant inconsistent with ORS 197.805, which states that “time is of the essence” in reaching final land use decisions.

Area(s) of Law:
  • Land Use

March 4 summaries

Central Oregon Landwatch v. Crook County

Under OAR 660-033-0020(4), when a lot, parcel or tract is reconfigured to qualify the land for the siting of a dwelling, the date of the reconfiguration is the date of creation or existence, and “reconfiguration” means any change in the boundary of the lot; therefore, a property line adjustment made after January 1, 1993 means that the land does not qualify as a parcel for purposes of ORS 215.824(2)(c) and OAR 660-033-0020(4).

Area(s) of Law:
  • Land Use

Rawson v. Hood River County

Under Siporen v. City of Medford, 349 Or 247 (2010), a local governing body’s interpretation is entitled to deference when it “plausibly interprets its own land use regulations . . . unless the interpretation is inconsistent with all of the ‘express language’ relevant to the interpretation, or is inconsistent with the purposes of policies underpinning the regulations.”

Area(s) of Law:
  • Land Use

Housing Land Advocates v. City of Happy Valley

MC 3.07.120 allows a city to reduce the minimum zoned capacity of a single lot or parcel only if it demonstrates that the reduction, when compared to the city’s overall minimum zoned residential capacity, is negligible.

Area(s) of Law:
  • Land Use

McGrew v. Yamhill County

Under ORS 197.830(9), the 21-day deadline for filing notice of intent to appeal begins when the appealed decision becomes final. OAR 661-010-0010(3) provides that an appealed decision becomes final when it is reduced to writing and signed, unless a local rule or ordinance specifies a later date.

Area(s) of Law:
  • Land Use

April 5 summaries

Lowell v. Jackson County

Jackson County Land Development Ordinance (LDO) 3.4.3(F) provides that if a parcel cannot meet all minimum setback requirements for structures, wells and on-site septic disposal systems before a property line adjustment, a requested property line adjustment cannot modify the parcel boundaries to comply with those setbacks; an applicant has the obligation to provide substantial evidence showing compliance.

Area(s) of Law:
  • Municipal Law

Landwatch Lane County v. Lane County

In order to comply with the “gross income” test established in ORS 197.247(1)(a), “objective criteria” is not required; if it were required, affidavits from an affiant that has an interest in the subject of the affidavit are sufficient “objective criteria.”

Area(s) of Law:
  • Land Use

Long v. City of Sumpter

ORS 197.830(11) requires petitions for review to be filed within the guidelines established by the Board. Under OAR 661-010-0030(1) petitions for review must be filed within 21 days after the date the record is received or settled by the Board.

Area(s) of Law:
  • Land Use

Oregon Coast Alliance v. Clatsop County

ORS 215.060 requires that, prior to action regarding the county’s comprehensive plan, a county’s governing body must conduct hearings after at least 10 days’ advance notice of “each of the hearings” is published in a newspaper. Hearings for which no published notice was given may comply with ORS 215.060 when such hearings are continuations of prior hearings held pursuant to published notice.

Area(s) of Law:
  • Land Use

Central Oregon Landwatch v. Deschutes County

Under DDC 18.88.040(B), where a WA Zone overlays an underlying EFU zone, the uses “conditionally permitted” in the WA Zone are those uses conditionally permitted in the underlying EFU zone. The uses “conditionally permitted” in the EFU zone include any use conditionally permitted, subject to discretionary review, or not “permitted outright.”

Area(s) of Law:
  • Municipal Law

May 8 summaries

Landwatch Lane County v. Lane County

Under ORS 197.763(6), a potential second open record period for “cross-review” is expressly limited to responses to new evidence submitted during a continued hearing or a first extended open record period.

Area(s) of Law:
  • Land Use

Phillips v. City of Corvallis

ORS 197.830(3) applies only when the local government holds a hearing and fails to provide the petitioner notice of the hearing, when the petitioner is entitled to notice under state law.

Area(s) of Law:
  • Land Use

Central Oregon Landwatch v. Deschutes County

Under the Deschutes County Code, a deed conveying multiple units of land using a single boundary description does not have the effect of consolidating previously separate units into a single, newly-created unit of land. Under DCC 18.04.030(A)(5), the term “partitioning” embraces partitions that occurred prior to the establishment of official ORS 92 partition procedure.

Area(s) of Law:
  • Municipal Law

Robson v. Polk County

Under ORS 197.015(10), a final decision does not include a preliminary decision that is not binding on the parties.

Area(s) of Law:
  • Land Use

Burgermeister v. Tillamook County

Under TCLUO 6.040(4), conditional uses must not “substantially” limit, impair, or prevent use of surrounding property for permitted uses. This standard may be satisfied notwithstanding minor limitations or impairments.

Area(s) of Law:
  • Municipal Law

Shepherd v. Yamhill County

Under ORS 197.830(9) and OAR 661-010-0015(1)(a), the deadline to file an appeal with LUBA is 21 days after the appealed decision becomes final. In order to satisfy this requirement, notice must be filed at the correct LUBA address.

Area(s) of Law:
  • Land Use

Rockbridge Capital v. City of Eugene

Under EC 9.7655(3), an appeal must include a statement of issues on appeal, be based on the record, and be limited to issues raised in the record that are set out in the filed statement of issues.

Area(s) of Law:
  • Municipal Law

Whittemore v. City of Gearhart

Under Gearhart Zoning Ordinance 11.040, the City of Gearhart may amend the Gearhart Zoning Ordinance only if it reports findings to establish that the offered amendment is consistent with the Gearhart Comprehensive Plan policies.

Area(s) of Law:
  • Municipal Law

June 8 summaries

Long v. City of Tigard

Tigard Community Development Code 18.380.030(b)(3) requires sufficient evidence of a change in the neighborhood, community, or a mistake or inconsistency in the comprehensive plan or zoning map in order to approve or deny an application for a quasi-judicial amendment.

Area(s) of Law:
  • Municipal Law

Kine and Kine Properties v. Deschutes County

Deschutes board of county commissioners’ interpretation that land “developed as a golf course,” under DCP Policy 4.8.2, refers to all land developed and used for golf in 2001, is not inconsistent with the express language or purpose of Policy 4.8.2.

Area(s) of Law:
  • Municipal Law

Levy v. Jackson County

ORS 197.825(2)(a) requires petitioners to exhaust all remedies available by right before petitioning LUBA for review. Regardless of whether Jackson County Land Development Ordinance 2.7.5 (D)(1) includes provisions that are permissive or mandatory, they are remedies that must be exhausted before LUBA has jurisdiction.

Area(s) of Law:
  • Land Use

Central Oregon Landwatch v. Deschutes County

Under Deschutes County Comprehensive Plan Section 3.4, the Rural Industrial map designation, and corresponding RI zone, applies only to the enumerated “exception areas,” rather than any rural land in an unincorporated community that lacks Goal 3 or 4 resource protection.

Area(s) of Law:
  • Land Use

George v. Lincoln County

ORS 475B.063(3) provides that “[a] city or county action concerning a land use compatibility statement [LUCS] . . . is not a land use decision for purposes of ORS chapter 195, 196, 197 or 215.” While ORS 197.825(1) grants LUBA jurisdiction over any “land use decision,” under ORS 475B.063(3), LUBA lacks jurisdiction to review city or county actions concerning a LUCS.

Area(s) of Law:
  • Land Use

Goldson v. Clackamas County

Under ORS 197.80(9), the deadline for filing a notice of intent to appeal is 21 days after the appealed decision becomes final.

Area(s) of Law:
  • Land Use

Hood River Valley Residents Committee v. Hood River County

OAR 660-004-0018 requires a new reasons exception when a site plan proposes a change in either the type or intensity of the use allowed by a previous reasons exception.

Area(s) of Law:
  • Land Use

Landwatch Lane County v Lane County

Lane County Code 13.020 authorizes the county to make a determination that a unit of land was created in conformance with the Lane Code and other applicable law.

Area(s) of Law:
  • Municipal Law

July 5 summaries

McMonagle v. City of Ashland

Ashland Municipal Code 18.6.1.030 requires a corner lot’s one street line to be the front lot line; the narrower street frontage of a lot must be the front lot line except when topographical or access problems make such a designation impractical. Historical site plans and orientation of the existing house cannot be used in making this determination.

Area(s) of Law:
  • Municipal Law

Central Oregon Landwatch v. Deschutes County

Determining whether lockable bed/bath rooms in a larger house qualify as “overnight lodging units” under ORS 197.435(5)(b) depends on factual determinations, analysis of Goal 8 history, and the underlying policy of relevant statutes.

Area(s) of Law:
  • Land Use

Columbia Pacific Building Trades Council v. City of Portland

OAR 661-010-0071 requires LUBA to reverse a land use decision if it finds the decision to be unconstitutional.

Area(s) of Law:
  • Land Use

McLaughlin v. Douglas County

Under Douglas County Land Use Development Ordinance 2.800.2, a permit extension approval is an administrative decision not subject to appeal as a land use decision.

Area(s) of Law:
  • Land Use

Martin v. City of Tigard

Under CDC 18.810.030.H.1, if development is approved without an extension, that particular development cannot prevent future extension; an extension that runs through a pre-existing development (existing prior to May 1, 1995) is considered extension prevention.

Area(s) of Law:
  • Municipal Law

August 6 summaries

Allott v. Multnomah County

Under OAR 661-010-0021(5)(e), if no amended notice of intent to appeal is filed or no original notice of intent to appeal is refilled, the appeal will be dismissed.

Area(s) of Law:
  • Land Use

Beddow v. Clackamas Count

An extension to the deadline for submitting a petition for review requires the written consent of all parties.

Area(s) of Law:
  • Land Use

Deumling v. City of Salem

ORS 197.835 (9)(a)(C) states that LUBA shall remand decisions not supported by substantial evidence in the whole record. OAR 664-004-0018(4) provides that when local governments adopt a reasons exception to a goal, “plan and zone designations must limit uses, density, public facilities and activities to only those justified in the exception.”

Area(s) of Law:
  • Land Use

Upper Midhill Estates LLC v. City of West Linn

Under OAR 661-010-0021(5)(e), an appeal will be dismissed if no amended notice of intent to appeal is filed or no original notice of intent to appeal is refiled.

Area(s) of Law:
  • Land Use

The Relief Nursery v. City of Springfield

Under OAR 661-010-0021(5)(e), if no amended notice of intent to appeal is filed or no original notice of intent to appeal is refilled, the appeal will be dismissed.

Area(s) of Law:
  • Land Use

Oral Hull Foundation for the Blind v. Clackamas County

Under ORS 197.830(2)(b), in order for a person to petition the board for review of a land use decision, the person must appear before the local government, special district or state agency orally or in writing.

Area(s) of Law:
  • Land Use

September 6 summaries

Department of Land Conservation and Development v. City of Klamath Falls

Under ORS 197.835(9)(a)(D), LUBA may reverse or remand a decision that misconstrues applicable law.

Area(s) of Law:
  • Land Use

McLaughlin v. Douglas County

Under OAR 660-033-0140(3), an appeal of a decision to grant a one-year extension for a conditional use permit for a gas pipeline is not a land use decision recognized by ORS 197.015.

Area(s) of Law:
  • Municipal Law

Glenwood 2006, LLC v. City of Beaverton

OAR 660-031-0026 provides that state agency permits must be compatible with acknowledged comprehensive plans and land use regulations. Because OLCC decisions regarding redemption centers are not listed in the statute, OLCC forms are not land use compatibility statements.

Area(s) of Law:
  • Municipal Law

Glenwood 2006, LLC v. City of Beaverton

ORS 197.825 limits LUBA’s jurisdiction to land use decisions. ORS 197.015(10)(a) defines a land use decision as a final decision that concerns the application of a comprehensive plan or land use regulation.

Area(s) of Law:
  • Land Use

Morgan v. Jackson County

Under ORS 215.130(5), for a structure or land use to be “lawful,” an applicant must be in compliance with federal, state or local regulations or licensing requirements that apply to some aspect of the land use or structure that are integrally related to the zoning or land use regulation requirements.

Area(s) of Law:
  • Land Use

McLoughlin Neighborhood Association v. City of Oregon City

Under OCMC 17.40.050(A), the Historic Review Board (HRB) has a duty to enquire into and make findings of fact and conclusions of law regarding the validity and effectiveness of a public official’s refusal to consent to the historical designation of public property. The HRB should adopt findings addressing threshold jurisdictional issues once they are raised before suspending its consideration of an application.

Area(s) of Law:
  • Municipal Law

October 8 summaries

Willamette Oaks LLC v. City of Eugene

Under ORS 197.835, LUBA will remand a decision that improperly construes a PUD condition of approval; this means the decision was not consistent with the text, context and apparent purpose of the PUD condition of approval.

Area(s) of Law:
  • Land Use

Hagan v. City of Grants Pass

GPDC 25.035(2) requires off street parking for uses not specified in the GPDC 25.042 schedule is to be “based upon the requirements for the most comparable building or use specified” in the GPDC 25.042 schedule.

Area(s) of Law:
  • Municipal Law

Central Oregon Landwatch v. Deschutes County

Under ORS 197.015(10)(b)(A), a land use decision includes a decision of a local government that is made under land use standards that do not require interpretation or the exercise of policy or legal judgment. DCC 4.12.030 is a general code and is not part of the county’s zoning ordinance or “land use standard” within the meaning of ORS 197.015(10)(b)(A).

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

While OAR 660-033-0130(2)(c) authorizes expansion of existing structures on non-high-value farmland within three miles of a UGB, (2)(c) says the expansions cannot go above a 100-person capacity for the place of assembly.

Area(s) of Law:
  • Land Use

Willis v. Clackamas County

Under ZDO 1203.03(C), a finding that an application complies with the traffic safety requirements is supported by substantial evidence where there is testimony of a traffic engineer and a traffic study, and there is an absence of a developed challenge to the findings and testimony on that point.

Area(s) of Law:
  • Municipal Law

Landwatch Lane County v. Lane County

Under ORS 214.213(1)(q), for a dwelling to be replaced when the former dwelling has not been taxed as a dwelling for five years, the only way to satisfy Section 2(2)(b) of 2013 Act is to establish that the dwelling was destroyed within the five year period or was improperly removed from the tax rolls, pursuant to Section 2(3) of the 2013 Act.

Area(s) of Law:
  • Land Use

Grahn v. City of Yamhill

ORS 197.835(9)(a)(B) provides that LUBA is to reverse or remand a land use decision if a local government failed to follow applicable procedures to the matter before it, and that failure prejudiced the substantial rights of petitioner.

Area(s) of Law:
  • Land Use

1000 Friends of Oregon v. Jackson County

Under OAR 660-004-0022, it is not improper to approve a reasons exception to Goal 3 on two alternative bases, particularly when there is uncertainty regarding the characterization of the proposed use.

Area(s) of Law:
  • Land Use

November 0 summaries