Oregon Land Use Board of Appeals

2018

January 12 summaries

Calef v. City of Seaside

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

Hood River Valley Residents v. Hood River County

Under HRCZO 60.12, if an application for a short-term rental permit is denied, a new application may not be filed for at least one year from the original application date.

Area(s) of Law:
  • Municipal Law

Hood River Valley Residents v. Hood River County

Under HRCZO 53.30(A) determining whether an application is a “resident of the property” for the purposes of HRCZO 53.30(A) requires the exercise of discretion. Additionally, the determination of whether a “STR will not unreasonably interfere with other uses permitted in the zone and whether the STR is a secondary use, incidental, accessory or subordinate to the residential uses or the existing building” is highly discretionary.

Area(s) of Law:
  • Municipal Law

Bishop v. Deschutes County

Based on ORS 197.805, LUBA has long held that it will decline to exercise jurisdiction over appeals where review would have no practical effect on the rights of properties.

Area(s) of Law:
  • Land Use

Save TV Butte v. Lane County

Under OAR 660-023-0030, Goal 5 planning for significant mineral and aggregate resource sites begins with the inventory process. The inventory process concludes with a comprehensive plan list or inventory of significant resource sites.

Area(s) of Law:
  • Municipal Law

Home Builders Association v. City of Eugene

ORS 197.307(4), sets fourth regulations that may apply to development of needed housing on land included in the urban growth boundary (UGB) and on the Buildable Lands Inventory (BLI), but the regulation does not apply the city’s initial determination of what land is included in a city’s inventory.

Area(s) of Law:
  • Land Use

Simpson v. City of Brownsville

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

Holmberg v. Deschutes County

The term “in conjunction with” located in ORS 215.283 means that temporary hardship dwellings must be in close proximity to the existing dwelling on the property.

Area(s) of Law:
  • Land Use

Holmberg v. Deschutes County

The term “in conjunction with” located in ORS 215.283 means that temporary hardship dwellings must be in close proximity to the existing dwelling on the property.

Area(s) of Law:
  • Land Use

Crowley v. City of Hood River

Under HRCP Goal 8, Policy 1, the city of Hood River must protect existing parks from being impacted by incompatible uses on nearby lands, but the city council may nevertheless elect to rezone existing parks to allow for new uses.

Area(s) of Law:
  • Land Use

Richards v. Jefferson County

ORS 215.283(1)(d) authorizes the county to approve an accessory dwelling on EFU-zoned land to be occupied by a relative of the farm operator, if “the farm operator does or will require the assistance of the relative in the management of the farm use[.]”

Area(s) of Law:
  • Land Use

February 3 summaries

Northwest Alliance Corvallis v. City of Corvallis

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

Wolcott v. Lane County

ORS 197.830(6) does not necessarily prohibit counties from considering the finality, nature, and effect of the decision in resolving the issues raised by a petitioner’s application.

Area(s) of Law:
  • Land Use

Oregon Coast Reliance v. Tillamook County

The LUO 11.030 code definition of the term ‘recreational vehicle’ makes it clear that under the LUO as currently written the use category ‘recreation vehicle’ at LUO 3.008(3)(r) is limited to nonresidential vacation, emergency or recreational use, and that a recreational vehicle can be used for a permanent residence only within a mobile/manufactured home park or similar facility.

Area(s) of Law:
  • Municipal Law

March 6 summaries

Hudson v. Jackson County

Under ORS 197.015(10)(a), a floodplain development permit decision requires a determination of whether existing structures serve uses that are allowed or authorized in the RR-5 zone and is therefore not an exception to the statute.

Area(s) of Law:
  • Municipal Law

Central Oregon Landwatch v. Crook County

OAR 660-033-0130(4)(c)(B)(i) states that “a lot, parcel, or portion of a lot or parcel, shall not be considered unsuitable solely because of size or location. . . .” A county must consider factors other than size or location when determining suitability.

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

Continual use of parcel as a school satisfies the requirements of ORS 215.130(5) and LC 16.251(5), establishing a “vested right” to continue previously conforming use which is presently nonconforming.

Area(s) of Law:
  • Land Use

Catherine Caudle vs. City of Dunes City

LUBA does not have jurisdiction to review a city ordinance appeal when a local government acts pursuant to its authority to prohibit marijuana businesses within its jurisdictional boundaries.

Area(s) of Law:
  • Land Use

Cossins v. Josephine County

Under ORS 215.503, counties must provide property owners with advance, individual, written notice by mail of the first hearing on an ordinance that proposes to rezone their property. Such notice must include specific information and be sent within a specified time frame. Failure to provide sufficient notice may prejudice property owners’ substantial rights even if they participated in one or more of the hearings held below.

Area(s) of Law:
  • Land Use

Brannon v. Multnomah County

Under MCC 33.2256(B), no reduction of the required Primary Fire Safety Zone is permitted for a nonconforming adjustment or variance.

Area(s) of Law:
  • Municipal Law

April 5 summaries

Feetham v. Jackson County

In determining the scope or extent of a nonconforming use right, the relevant legal question is the extent of the activity that is actually occurring on the date when the use becomes nonconforming, with an allowance for changes in the volume or intensity of the use if they are attributable to growth or fluctuations in business conditions.

Area(s) of Law:
  • Land Use

Aboud vs. City of Stayton

LUBA has the authority to reverse or remand a local government decision if the local government failed to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights of the petitioner.

Area(s) of Law:
  • Land Use

Seits vs. Yamhill County

LUBA did not have jurisdiction to reverse and remand a decision to approve a conditional use permit when the decision was made based on the county’s building code which has not been adopted as part of the county’s land use code.

Area(s) of Law:
  • Land Use

Hill v. City of Portland

The width of the local street right-of-way must be sufficient to accommodate expected users, taking into consideration the characteristics of the site and vicinity, such as the existing street and pedestrian system improvements, existing structures, and natural features.

Area(s) of Law:
  • Municipal Law

Martin v. City of Tigard

City council interpretations of their own land use laws are subject to a highly deferential standard of review by LUBA, under which it must affirm a governing body’s interpretation of local land use legislation unless that interpretation is implausible.

Area(s) of Law:
  • Land Use

May 4 summaries

King v. Deschutes County

Under DCC 18.116.330(B)(10)(a) and (b), the county must find a proposed marijuana production facility will not unreasonably interfere with the neighbor’s use and enjoyment of their property. The finding must be supported by a report from a licensed engineer.

Area(s) of Law:
  • Municipal Law

Patel vs. City of Portland

Under PCC 33.430.280, “site-related” development standards include height and setback standards as being consistent with the purposes of environmental zones and review.

Area(s) of Law:
  • Municipal Law

Landwatch Lane County v. Lane County

Only when a property’s soil type does not meet the definition of “agricultural land” is the local government to look to other factors in determining whether to classify land as “agricultural land.”

Area(s) of Law:
  • Land Use

McLoughlin Neighborhood Association v. City of Oregon City

(1) In the absence of specific requirements from LUBA or procedures adopted by the local governments themselves, local governments have discretion to determine the preferred method of resolving decisions on remand. (2) A local government’s adoption of a historic resource regulatory scheme is not necessarily an implied waiver of statutory rights to refuse consent to historic designations of local government-owned property. (3) A city manager’s authority to exercise “supervision over all city property” is sufficiently broad to include the authority to refuse to consent to historic designation of city-owned property. (4) ORS 197.772(1) authorizes both public and private property owners to refuse to consent to historic designation of their property.

Area(s) of Law:
  • Land Use

June 6 summaries

Central Oregon Landwatch v. Deschutes County

The mere threat of potential litigation against the county is an insufficient basis, under OAR 660-023-0040(4) and (5), and the definition of the ESEE for the county to abandon or disavow a portion of its acknowledged Goal 5 program.

Area(s) of Law:
  • Land Use

Friends of Canemah v. City of Oregon City

ORS 197.835(9)(a)(B) allows LUBA to reverse or remand a land use decision of a local government if the local government made a procedural error and that error prejudiced the substantial rights of the petitioner.

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

(1) A county ordinance identifying a parcel designated for forest uses in its Statewide Planning Goal 5 inventory of significant mineral and aggregate sites is sufficient evidence to support a county’s conclusion that an inconsistency exists between an ordinance and a plan or zoning map for purposes of making conformity determination amendments. (2) LUBA generally does not consider arguments in footnotes that set out different legal theories than those presented in the assignments of error themselves.

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

Where local governments choose to provide an alternative procedure for property line adjustments, the alternative procedure must include local government approval of some kind. Accordingly, a post-hoc approval process is permissible.

Area(s) of Law:
  • Land Use

Reed v. Jackson County

Because Jackson County neglected to determine whether sections of the Jackson County Land Development Ordinance required loading spaces, but applied other areas of the statute, "the county must address whether the section applies and if it does, whether it is met."

Area(s) of Law:
  • Municipal Law

Gu v. City of Bandon

Under BMC 17.92.040(G), the city council must determine whether the conditions and limitations that an applicant has agreed to in its conditional use permit application will “alter the character of the surrounding area in a manner which substantially limits, impairs, or precludes the use of surrounding properties.”

Area(s) of Law:
  • Municipal Law

July 3 summaries

City of Albany v. Linn County

OAR 661-010-0071(1)(c) states that LUBA shall reverse a land use decision where the decision “violates a provision of applicable law and is prohibited as a matter of law.” LLC 938.340(B) allows for variances which are “consistent with the city’s comprehensive plan,” LUBA found that this variance was not and it was, therefore, “prohibited as a matter of law.”

Area(s) of Law:
  • Land Use

Friends of Douglas County v. Douglas County

A decision approving a boundary line adjustment to a parcel under applicable standards does not “collaterally attack” the decisions that created the parcel under different standards, even if the adjusted parcel would not comply with those different standards.

Area(s) of Law:
  • Land Use

McAndrew v. Washington County

In order to bring assignments of error to LUBA, petitioners must raise their issues during the initial proceedings, otherwise, they are waived, under ORS 197.835(3) and ORS 197.763(1).

Area(s) of Law:
  • Land Use

August 8 summaries

Rogue Advocates v. Josephine County

Where a county does not address or adopt findings in response to an argument below concerning the interpretation of its own land use laws, it is inappropriate for LUBA to interpret the relevant provisions of the county’s land use laws in the first instance before giving the county an opportunity to address the issue itself on remand.

Area(s) of Law:
  • Land Use

Oregon Department of Fish and Wildlife v. Lake County

LCZO 18.05(D)(6) mandates 160-acre minimum parcel size for new land division within big game habitat.

Area(s) of Law:
  • Municipal Law

VanSickle v. Klamath County

Adequate findings are required to support quasi-judicial land use decisions and such findings must identify the relevant approval standards, set out facts which are believed and relied upon, and must include explanations of how those facts lead to the decision on compliance with the approval standards.

Area(s) of Law:
  • Land Use

Newbrook v. City of Portland

To determine whether the local decision maker’s conclusion is supported by substantial evidence, the evidence must be what a reasonable person would rely on in reaching a decision.

Area(s) of Law:
  • Land Use

Oregon Coast Alliance v. Curry County

Under ORS. 215.246(3), the scope of the phrase “alternatives” may be interpreted broadly enough to include alternative sources and methods for obtaining irrigation water, in addition to means and routes of transporting it, however, any written explanation by an applicant rejecting identified alternatives will satisfy the statute’s burden.

Area(s) of Law:
  • Land Use

Lundeen v. City of Waldport

While the feasibility of a proposed planned development must be shown at the preliminary plan stage—requiring substantial evidence that solutions to certain problems posed by the project are possible, likely, and reasonably certain to succeed—detailed technical matters involved in selecting particular solutions and requiring expert evaluation may be deferred to the final plan stage for administrative review and approval.

Area(s) of Law:
  • Land Use

Central Oregon Landwatch v. Deschutes County

If the record establishes that the land in question does not possess soil suitable for farm use, petitioner cannot claim that this conclusion is erroneous based on surrounding land’s suitability.

Area(s) of Law:
  • Land Use

Meyer v. Jackson County

While a county may impose a more expansive definition of “floodway” than that offered by the Federal Emergency Management Agency, the county has declined to do so in this case.

Area(s) of Law:
  • Municipal Law

September 4 summaries

Johnson v. City of Portland

Nothing in PCC 33.33.030.D or PCC 33.855.070A.2 evidences an intent by the city to delegate ultimate responsibility for deciding map error correction applications to BDS or to make a BDS decision the city’s final decision on such an application.

Area(s) of Law:
  • Municipal Law

Landwatch Lane County v. Lane County

While the unlawfulness of a parent parcel does not taint a parcel that was subsequently created lawfully, it is unclear whether a remainder parcel of an approved subdivision can be considered to have received county approval for purposes of legal verification.

Area(s) of Law:
  • Land Use

Friends of Douglas County v. Douglas County

In determining whether the subject property is “agricultural land” under OAR 660-033-0020(1)(b), a county must address whether it is “adjacent to or intermingled with lands in capability classes I-IV/I-VI within a farm unit.”

Area(s) of Law:
  • Land Use

Harris v. Marion County

Under MCC 17.136.060(A)(2), it is unclear whether police services are “rural services” for purposes of approving a conditional use permit.

Area(s) of Law:
  • Municipal Law

October 9 summaries

Landwatch Lane County v. Lane County

Under OAR 660-006-0035(3), a county may not rely upon an applicant’s bare assertion that a proposed structure complies with applicable fire siting standards if other evidence in the record indicates to the contrary that it does not.

Area(s) of Law:
  • Land Use

Conte v. City of Eugene

The fact that application requirements may not have been satisfied provides no basis for remand unless the failure to satisfy the requirements resulted in non-compliance with mandatory approval criteria.

Area(s) of Law:
  • Land Use

Hood River Valley Residents Comm. v. Hood River County

While ORS 215.416(11)(a)(C) reflects that a county’s land use regulations may provide the manner in which a written appeal of a permit decision made without a hearing shall be filed, it does not allow the county to place additional restrictions on who can appeal such a decision.

Area(s) of Law:
  • Land Use

Richardi v. City of Eugene

A final legal determination on a land use matter shall stand in later proceedings if not successfully challenged in prior proceedings.

Area(s) of Law:
  • Land Use

Stafford Investments LP v. Clackamas County

Under CCCP Policy 4.LL.3, a finding that a property has “an historical commitment to commercial uses” for purposes of allowing an RC designation requires that commercial uses have constrained the scope of uses on the property such that going forward only commercial uses are feasible, which excludes consideration of the temporary and incidental commercial uses.

Area(s) of Law:
  • Municipal Law

Thomas v. Wasco County

Under ORS 197.015(10)(a), while a county Notification of Non-violation may “concern” land use regulation, it does not necessarily constitute an “application” of land use regulation giving LUBA jurisdiction over its appeal.

Area(s) of Law:
  • Land Use

American Tower Corp. v. City of Tualatin

A finding that a city council adopted that is not challenged by a petitioner is dispositive, and that finding renders any other errors in other findings that are responsive to the petitioner’s arguments below harmless.

Area(s) of Law:
  • Land Use

Hill v. City of Portland

The city’s determination not to require street improvements for safety reasons under PCC 33.641.020(A) does not mean it cannot impose a condition requiring a waiver of remonstrance under PCC 33.800.070 to enforce PCC 17.88.020 for other reasons.

Area(s) of Law:
  • Municipal Law

Vannett Properties LLC v. Lane County

A decision regarding “the establishment of a dwelling” authorized under section 6 of Measure 49, or a determination of whether a petitioner has a right to construct a Measure 49 dwelling made “under” sections 6 and 11 of Measure 49, is not a land use decision and is therefore not subject to LUBA’s jurisdiction.

Area(s) of Law:
  • Land Use

November 8 summaries

A Walk on the Wild Side v. Washington County

The fact that an owner of property, zoned exclusive farm use, uses the property for permitted farm uses does not shield concurrent unpermitted uses from code enforcement action.

Area(s) of Law:
  • Land Use

MJAI Oregon 5 LLC v. Linn County

ORS 197.835(10)(a) requires reversal of a denial decision when LUBA determines that the local government lacks the discretion to deny the development application.

Area(s) of Law:
  • Land Use

Warren v. Washington County

ORS 197.307(4) prohibits local governments from applying standards, conditions, and procedures that are not clear and objective to proposals for housing development, without regard to whether the property is “buildable land.”

Area(s) of Law:
  • Land Use

Fairmount Neighborhood Association v. City of Eugene

EC 9.8325(5) prohibits “grading” on portions of development sites that meet or exceed 20% slope, but it does not prohibit all development, site improvements, or soil disturbance, such as “excavation.”

Area(s) of Law:
  • Municipal Law

Watts v. Metro

For purposes of ORS 197.015(10)(a), important considerations for determining the finality of a decision include whether it is an exercise of the local government’s land use planning authority and the extent to which it is binding on the local government and others.

Area(s) of Law:
  • Land Use

Home Builders Association v. City of Eugene

Under ORS 197.312(5), when a city applies existing ADU standards for the first time to zones in which ADUs were not previously allowed, those existing standards are subject to review for compliance with the statute.

Area(s) of Law:
  • Land Use

Kamps-Hughes v. City of Eugene

ORS 197.312(5) is not limited to only applications for statutory permits. Zone verification decisions must also comply with the statute’s requirement that limitations on accessory dwelling units be “reasonable local regulations relating to siting and design.”

Area(s) of Law:
  • Land Use

Nicita v. City of Oregon City

Under ORS 227.180(1)(c), nothing prohibits a city from adopting local appeal fee enabling legislation by ordinance and setting its fee schedule by resolution, the fact that a city’s appeal fee is based on an estimate of average costs instead of an arithmetic average of prior costs provides no basis for reversal or remand, and local governments are afforded broad discretion in calculating and assessing local appeal fees.

Area(s) of Law:
  • Land Use

December 6 summaries

Hood River Valley Residents’ Committee v. Hood River County

(1) LUBA must accept a local government’s interpretation of its land development code that is plausible and not inconsistent with the express language or purposes of or the policies underpinning the provisions at issue, (2) LUBA may not consider arguments raised for the first time on appeal, and (3) assignments of error directed at decisions other than the decision on appeal do not provide a basis for reversal or remand.

Area(s) of Law:
  • Land Use

Elenes v. Deschutes County

Under ORS 197.829(2), in the absence of a reviewable interpretation, LUBA has discretion to determine whether a decision is correct or to allow local governments to interpret ambiguous code language in the first instance.

Area(s) of Law:
  • Land Use

Blu Dutch LLC v. Jackson County

Under LDO 8.7.1(G), a fire safety inspection is not required prior to approving a forest dwelling application unless a fire agency comments on the application and recommends such an inspection prior to development approval and the county makes a finding that such measures are necessary to protect public safety.

Area(s) of Law:
  • Municipal Law

Hunt v. City of the Dalles

LUBA must affirm a city’s interpretation of its own comprehensive plan and land use regulations if the interpretation is plausible and not inconsistent with their express language, purpose, or policy, even if petitioner presents or LUBA conceives a stronger interpretation.

Area(s) of Law:
  • Land Use

Central Oregon Landwatch v. Deschutes County

Under RLUIPA, a county may not exclude churches from a Wildlife Area overlay zone while allowing nonreligious assemblies and institutions.

Area(s) of Law:
  • Land Use

Van Dyke v. Yamhill County

Whether a land use matter is quasi-judicial or legislative depends on (1) whether the process is bound to result in a decision, (2) whether the making of the decision is bound to apply preexisting criteria to concrete facts, and (3) whether the matter is directed at a closely circumscribed factual situation or a small number of persons.

Area(s) of Law:
  • Land Use