Sid Hariharan

Land Use Board of Appeals (45 summaries)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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