Oregon Land Use Board of Appeals

2019

January 6 summaries

Neighbors for Smart Growth v. Washington County

(1) Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding and (2) any error in accepting “new evidence” during a non-evidentiary remand proceeding could provide a basis for reversal or remand only if the error prejudiced petitioners’ substantial rights.

Area(s) of Law:
  • Land Use

Nicita v. City of Oregon City

Under OAR 660-023-0250(3)(b), a local government is not limited to considering regulations specifically adopted to implement Goal 5 in determining whether new uses could conflict with acknowledged Goal 5 resources.

Area(s) of Law:
  • Land Use

Riverview Abbey Mausoleum Company v. City of Portland

(1) The PCC allows a local appellant to submit fee waiver and appeal requests concurrently and requires neither that a fee waiver decision be signed nor noticed, and (2) an organization’s failure to follow its bylaws in voting to file a local appeal provides no basis for reversal or remand.

Area(s) of Law:
  • Municipal Law

Landwatch Lane County v. Lane County

In challenging a development approval that depends upon a prior, unappealed government approval, LUBA will not review arguments that a prior decision was procedurally or substantively incorrect because such a challenge would constitute an impermissible collateral attack on a decision not before LUBA.

Area(s) of Law:
  • Land Use

Crowley v. City of Hood River

Under OAR 661-010-0071(2)(d), when the Court of Appeals rejects a local government’s interpretation of its comprehensive plan, but does not adopt its own interpretation or express any opinion regarding petitioner’s interpretation, the appropriate disposition for LUBA is to remand the decision to the local government for further proceedings.

Area(s) of Law:
  • Land Use

Renken v. City of Oregon City

(1) Under OCMC 14.04.060, the city is not limited to considering existing infrastructure at the time of annexation but may also consider future availability of infrastructure improvements to support the development of annexed territory, and (2) the OCMC does not require the city to identify exactly how infrastructure will be paid for as part of annexation decisions.

Area(s) of Law:
  • Municipal Law

February 8 summaries

Landwatch Lane County v. Lane County

Under ORS 92.017, the illegal division of a parcel by conveyance does not destroy the legal status of the parcel for purposes of approving a forest template dwelling under ORS 215.750(1)(a).

Area(s) of Law:
  • Land Use

Roten v. City of Turner

Under ORS 197.835(4)(a), a petitioner may raise a local government’s failure to cite applicable criteria in its notices, staff report, or decision for the first time on appeal to LUBA.

Area(s) of Law:
  • Land Use

Leyden v. City of Eugene

Under 197.830(5)(b), the 21-day appeal period for zone verification decisions begins either on the date the petitioner is placed on inquiry notice or, if petitioner makes timely inquiries and discovers the decision, on the date the decision is discovered.

Area(s) of Law:
  • Land Use

McNichols v. City of Canby

Generally, a final and authoritative determination regarding the intent and scope of deeds, easements, and similar real estate documents can be obtained only in circuit court.

Area(s) of Law:
  • Land Use

Armstrong v. Jackson County

LUBA may remand a decision to the local government to provide an essential interpretation that the decision omits.

Area(s) of Law:
  • Land Use

Estroff v. City of Dundee

(1) Under ORS 197.829(1), LUBA must affirm a governing body’s interpretation of a land use regulation unless the interpretation is implausible, or inconsistent with the express language or purpose of the regulation, and (2) the existence of a stronger or more logical interpretation does not render a weaker or less logical interpretation implausible.

Area(s) of Law:
  • Land Use

Richards v. Jefferson County

Under OAR 660-033-0130(9), while counties have some discretion to determine the thresholds of a “commercial farming operation” for purposes of approving relative farm help dwellings, this requires sufficient scale and intensity to induce and require a reasonable farmer to devote the majority of his or her working hours to operating the farm.

Area(s) of Law:
  • Land Use

Lee v. Marion County

LUBA is not authorized to second guess local decision makers’ judgment regarding the credibility of evidence presented in land use hearings.

Area(s) of Law:
  • Land Use

March 4 summaries

Hulme v. City of Eugene

Under EC 9.2751(1)(b), areas which are neither in residential use nor reserved for the exclusive use of the residents in a development may still be included in a net density calculation if they are used exclusively to support the residential use of the property.

Area(s) of Law:
  • Land Use

Portland General Electric Company v. City of West Linn

Under ORS 197.803(3)(b), a person adversely affected by a local land use decision may not delay the 21-day appeal period by simply failing to read the decision, recognize that it could be a land use decision, or timely transmit a copy to its attorney. Possession of a copy of the decision is sufficient to establish that the person “knew” of the decision for purposes of the statute.

Area(s) of Law:
  • Land Use

Tilla Bay Farms Inc. v. Tillamook County

Under TCLUO 1.060(1), just because a proposed use is specifically identified in some zones does not mean the county may not make a similar use determination regarding whether that use is allowed in other zones.

Area(s) of Law:
  • Land Use

Central Oregon Landwatch v. Deschutes County

Where a plan amendment merely expands the allowable locations that could be the subject of future applications to apply particular plan designations, the local government need not adopt findings of compliance with the statewide planning goals if it is clear that those future applications themselves will be required to demonstrate consistency with the goals.

Area(s) of Law:
  • Land Use

April 6 summaries

Hunt v. City of The Dalles

(1) Under the City of The Dalles LUDO 10.3.080.020(B)(6), the city’s findings must explain why an adjustment will not allow an increase in density “in the RL zone,” not whether it will increase the density “associated with the use of the development site.” (2) Under ORS 197.835(9)(a)(C), a typographical error in a few places in the decision does not amount to reversible error or mean that the decision is not supported by substantial evidence.

Area(s) of Law:
  • Land Use

Vannatta v. City of St. Helens

(1) Under ORS 197.835(9)(a)(B), in order to establish a procedural error, petitioners must identify the procedure allegedly violated, show that the cited procedures are applicable to the local government’s proceedings, and establish that the local government’s actions violated the cited procedures. (2) Under ORS 197.829(1)(a), LUBA must affirm a city council’s interpretation of its land use regulation unless the interpretation is inconsistent with the express language of the comprehensive plan or land use regulation.

Area(s) of Law:
  • Land Use

York v. Clackamas County

Under ZDO 406.05(A)(1) and OAR 660-006-0025(5)(b), the proper comparison for purposes of assessing whether there is significantly increased risk of fire hazard is not between the proposed solar facility and other solar facilities, but between the proposed facility and the preexisting farm or forest conditions.

Area(s) of Law:
  • Land Use

Niederer v. City of Albany

(1) Under ORS197.835(9)(a)(B), while political predispositions do not require recusal, statements which demonstrate that an elected official has prejudged a matter such that they are incapable of making a decision based on the evidence and argument before them during the local proceeding may be sufficient to establish bias. (2) While findings need not take a particular form and “no magic words need be employed” in order to be reviewable, they must “establish the factual and legal basis for the particular conclusions drawn in a challenged decision.”

Area(s) of Law:
  • Land Use

Shaff v. City of Medford

(1) Under OAR 660-012-0020(3), just because a local government’s inventory of bicycle facilities includes a variety of facilities, some of which may be viewed as substandard, does not mean that the inventory fails to include all existing and committed bicycle facilities. (2) Under Goal 2, the requirement that decision be supported by an adequate factual base is met by evidence a reasonable person would rely upon to reach a decision.

Area(s) of Law:
  • Land Use

Williams v. Coos County

(1) Under ORS 197.829(1)(a), LUBA is required to affirm a board of county commissioners’ interpretation of its land use regulation unless the interpretation is inconsistent with the express language of the comprehensive plan or land use regulation. (2) OAR 660-033-0140(1)(c) does not prohibit a local government from adopting new criteria and exempting existing issued permits from those new criteria.

Area(s) of Law:
  • Land Use

May 8 summaries

Bishop v. Deschutes County

Under DCC 22.20.015, which is remedial in nature and not punitive, decisions which either determine that an existing use requires land use approval or deny an application to retroactively approve an existing use do not constitute a determination that a “violation” has occurred.

Area(s) of Law:
  • Land Use

Himmelberger v. City of Portland

LUBA will affirm a decision denying an application as long as there is one valid basis for denial.

Area(s) of Law:
  • Land Use

Eng v. Wallowa County

(1) Under ORS 197.763(6)(b), neither the hearing at which the governing body deliberates nor the period between the hearing and the governing body's final decision provide petitioners with a meaningful opportunity to object to the admission of evidence with final legal argument. (2) Where specific issues are raised concerning the compliance with applicable criteria, the findings must address those issues. (3) When several methods for calculating the center point of a property for purposes of a forest template dwelling are identified, the county must explain the basis for its selection. (4) The fact that some applicable approval criteria in a public proceeding do not require the exercise of interpretation or judgment does not mean the county may defer its review to a non-public proceeding.

Area(s) of Law:
  • Land Use

Oster v. City of Silverton

Under ORS 197.195(1), in order to incorporate a comprehensive plan standard as approval criteria for limited land use decisions, a local government must make clear what specific plan provisions apply and may not rely on incorporation by reference of the entirety of plan.

Area(s) of Law:
  • Land Use

Stop the Dump Coalition v. Yamhill County

Under ORS 215.296, a condition intended to prevent a nonfarm use from significantly changing or increasing the cost of accepted farm practices on surrounding farmlands may not be sufficient where there is no quantification in the record of how effective that condition would actually be.

Area(s) of Law:
  • Land Use

Cattoche v. Lane County

(1) In determining whether new uses will conflict with protected Goal 5 resources under OAR 660-023-0040, local governments must evaluate all uses allowed outright or conditionally in the new zone and may not limit their evaluation based on the uses proposed in the new development or any conditions placed thereon. (2) LUBA will not affirm a decision when the findings fail to identify relevant criteria, even if the parties identify evidence in the record which clearly supports that decision, if there is conflicting evidence in the record.

Area(s) of Law:
  • Land Use

O'Callaghan v. City of Joseph

Under OAR 661-010-0010(3) and ORS 197.015, a local government decision becomes final—and therefore subject to LUBA’s jurisdiction—only when it bears the necessary signatures of the decision maker(s), even if it lists an earlier date as the “date of decision.”

Area(s) of Law:
  • Land Use

Sky Lakes Medical Center, Inc. v. City of Klamath Falls

LUBA must affirm a governing body’s interpretation of a land use regulation unless the interpretation is inconsistent with the express language or purpose of the regulation—even if petitioner’s interpretation is equally plausible.

Area(s) of Law:
  • Land Use

June 0 summaries

July 0 summaries