John Ross McKenzie

Land Use Board of Appeals (30 summaries)

Bartlett v. City of Portland

Under OAR 661-010-0015(1)(a), a notice of intent to appeal (NITA) must be filed with LUBA within 21 days of the date the local government's land use (or limited land use) decision became final; where a petitioner sends a NITA via certified mail within the 21 days, but mails it to an address other than LUBA's current address and as a result LUBA ultimately receives the NITA outside of the 21-day period, the petitioner's appeal will be dismissed as untimely filed.

Area(s) of Law:
  • Land Use

Kandu Ranch, LLC v. Jackson County

ORS 197.665(3), consistent with ORS 215.283(2)(o), allows local governments to approve “a residential home in an existing dwelling” in exclusive farm use (EFU) zones, whereas a “residential facility” is only allowed in residential zones; accordingly, a local government’s approval of an application for a “residential facility” in an EFU zone will be grounds for reversal, pursuant to OAR 661-010-0071(1)(c), as a “violat[ion] of applicable law and [. . .] prohibited as a matter of law.”

Area(s) of Law:
  • Land Use

Friends of Yamhill County v. Yamhill County

Pursuant to OAR 661-010-0021(5)(e), when a petitioner fails to file an amended notice of intent to appeal, or fails to refile an original notice of intent to appeal, as provided in OAR 661-010-0021(5)(a), then that appeal will be dismissed.

Area(s) of Law:
  • Land Use

Oregon Department of Fish and Wildlife v. Crook County

Although not an express requirement under ORS 197.835(9)(a)(B), LUBA has always required that parties object to procedural errors at the local level, if there was an opportunity to object, so that the local government has an opportunity to correct the alleged procedural errors; it follows that where a party has opportunity to object but fails to do so, that party cannot assign error at LUBA based on those procedural errors. Confederated Tribes v. City of Coos Bay, 42 Or LUBA 385, 391-92 (2002); Torgeson v. City of Canby, 19 Or LUBA 511, 519 (1990); Mason v. Linn County, 13 Or LUBA 1, 4 (1984), aff’d 73 Or App 334 (1985); Meyer v. Portland, 7 Or LUBA 184, 190 (1983), aff’d 67 Or App 274 (1984); Dobaj v. Beaverton, 1 Or LUBA 237, 241 (1980).

Area(s) of Law:
  • Land Use

Dion v. Baker County

Pursuant to ORS 197.825(2)(a) and Miles v. City of Florence, 190 Or App 500 (2003), a petitioner must adequately specify the reasons for appeal in the petitioner’s notice of appeal to the local government; if a petitioner fails to adequately raise and exhaust issues during the local appeals process before appealing to LUBA, the petitioner will, in turn, have waived the opportunity to raise such issues before LUBA.

Area(s) of Law:
  • Land Use

Rogue Advocates v. Josephine County

If a party’s assertion is cited as an important justification for a plan amendment (e.g., the need for more aggregate sites), and that assertion is essential to a finding of compliance with Josephine County Rural Land Development Code 46.040(D)(2)(which provides that “[t]he more [a] change introduces inconsistent densities and uses into an area, the greater the burden on the applicant to justify the basis for the change”), then there must be substantial evidence on the record to support the assertion.

Area(s) of Law:
  • Municipal Law

Preserve the Pearl LLC v. City of Portland

Under ORS 197.829(1) and Siporen v. City of Medford, 349 Or 247 (2010), a local government can plausibly interpret its own land use regulations by first considering and then choosing between (or harmonizing) conflicting provisions; a local government’s plausible interpretation must be affirmed unless the interpretation is inconsistent with all of the “express language” that is relevant to the interpretation, or is inconsistent with the purposes or policies underpinning the regulations.

Area(s) of Law:
  • Land Use

Devin Oil Co. v. Morrow County

Morrow County Zoning Ordinance (MCZO) 3.090(C)(3) (prohibiting certain “meeting places” within the Aircraft Approach Overlay) does not implement OAR 660-013-0080(1)(a) (requiring local governments to adopt airport compatibility requirements that prohibit “public assembly uses” within the Runway Protection Zone) because MCZO 3.090(C)(3) was adopted in 1980, sixteen years prior to promulgation of OAR 660-013-0080(1)(a); accordingly, so long as the county interprets “meeting place” in a manner consistent with the express language of the MCZO, the county’s interpretation must be affirmed pursuant to ORS 197.829(1)(a), regardless of the definition of “public assembly uses” set out at OAR 660-013-0020(5).

Area(s) of Law:
  • Municipal Law

Oregon Coast Alliance v. City of Brookings

Pursuant to ORS 197.829(1)(d), a local government’s interpretation of one of its comprehensive plan provisions, e.g., a policy, cannot be contrary to the language of the land use goal that the comprehensive plan provision implements.

Area(s) of Law:
  • Land Use

Bend/Sisters Garden RV Resort v. City of Sisters

Pursuant to Sisters Municipal Code (SMC) 5.24.115(1), “[n]o person or other entity shall engage, conduct[,] or participate in the business of a transient merchant in the City without first obtaining a temporary business license,” unless otherwise permitted under SMC 5.24.115(5) because “the transient merchant activity is held in conjunction with a special event for which the sponsoring organization has already secured a special event permit from the City.”

Area(s) of Law:
  • Municipal Law

Phillips v. City of Happy Valley

Notwithstanding the Oregon legislature’s intent for “ORS 197.830(3) to expand the time to file a notice of intent to appeal to LUBA . . . when a hearing is not held in some circumstances or when a party is precluded from participating in a quasi-judicial land use hearing because the notice of the hearing is defective under state law,” ORS 197.830(3)(b) does not operate to expand the time for filing an appeal where a hearing is held.

Area(s) of Law:
  • Land Use

Harrison v. City of Cannon Beach

Pursuant to Cannon Beach Municipal Code (CBMC) 17.40.020(A)(1), “[p]lanned residential development . . . shall include not less than three acres of contiguous land, unless the planning commission finds that property of less than three acres is suitable by virtue of its unique character, topography or other natural features, or by virtue of its qualifying as an isolated problem area” and where a proposed planned development is shown to possess “unique topography” it may qualify for a “degree of flexibility” consistent with the purposes of the planned development provisions of CBMC 16.04.310.

Area(s) of Law:
  • Municipal Law

King v. Clackamas County

Pursuant to OAR 660-004-0020(2)(c), a local government is not required to evaluate specific alternative sites for a proposed use unless parties identify specific alternative sites and provide evidence that developing those sites with the proposed use would have significantly fewer adverse impacts than the originally proposed site.

Area(s) of Law:
  • Land Use

Kovash v. Columbia County

In Davis v. City of Bandon, 19 Or LUBA 327, 336 (1991), LUBA explained that before existing development ordinances and regulations are suspended by way of a moratorium, they must be shown to be inadequate. ORS 197.520(3)(a)(A), (b)(A). Moreover, for a moratorium to be valid—even if the ordinances and regulations are inadequate—alternative methods of achieving the objectives of the moratorium must be unsatisfactory. ORS 197.520(3)(a)(C), (b)(C).

Area(s) of Law:
  • Municipal Law

Treadway et al v. Jefferson County

When read together, the language in JCZO 301.6(J)(4) and JCZO 301.6(J)(2), pertaining to temporary medical hardship dwellings, suggests a temporal nexus that requires that a permanent dwelling must exist on the property “at such time as” (or “when”) “the hardship ends” and that the permanent dwelling must be removed within three months after the hardship ends.

Area(s) of Law:
  • Municipal Law

Space Age Fuel, Inc. v. Umatilla County

Under ORS 197.835(11)(b), LUBA may overlook a local government’s “defective” findings if a party can identify evidence that “clearly supports” the local government’s decision or part of the decision.

Area(s) of Law:
  • Land Use

Lenahan v. Wallowa County

Subsection (3)(a) of section 11 of Measure 49 provides that a new lot or parcel on resource land may not exceed two acres if the lot or parcel is located on high-value farmland, and, pursuant to ORS 195.318(1), a determination by a public entity under sections 5 to 11 of Measure 49 is not a “land use decision” as defined in ORS 197.015(1)(a)(A).

Area(s) of Law:
  • Land Use

Central Oregon Landwatch v. Deschutes County

ORS 215.283(2)(c) demonstrates that the adjective “private” is intended to distinguish privately-owned and managed recreational lands from publicly-owned and managed recreational lands, rather than pertaining to the exclusion of the public in general.

Area(s) of Law:
  • Land Use

Central Oregon Landwatch v. Deschutes County

Under OAR 660-023-0180(5)(a), a petitioner must establish that “factual information indicates significant potential conflicts” with agricultural practices such that the 1,500 foot impact area under the rule should be enlarged.

Area(s) of Law:
  • Land Use

Graser-Lindsey v. City of Oregon City

Under Oregon City Comprehensive Plan Policy 14.3.4, the entity responsible for a new development must bear the cost of providing new public services and improvements to existing public services resulting from the new development to the maximum extent allowed under state law for Systems Development Charges.

Area(s) of Law:
  • Municipal Law

Devin Oil Co. v. Morrow County

A petitioner is “adversely affected” when a local land use decision impinges upon the petitioner’s use and enjoyment of his or her property, or otherwise detracts from interests personal to the petitioner (adverse affects may include noise, odors, increased traffic, and potential flooding).

Area(s) of Law:
  • Land Use

Wal-Mart Stores, Inc. v. City of Hood River

The general principles of nonconforming uses (including discontinuance) apply to vested rights, at least for those counties subject to ORS 215.130, the statute that provides for nonconforming uses.

Area(s) of Law:
  • Land Use

Northwest Trail Alliance v. City of Portland

LUBA should exercise review jurisdiction over a decision under the significant impacts test only if the petitioner identifies the non-land use standards that the petitioner believes apply to the decision and would govern LUBA’s review.

Area(s) of Law:
  • Land Use

Widgi Creek Homeowners v. Deschutes County

When an issue has been decided in a prior proceeding, the prior decision on that issue may preclude relitigation of the issue if five requirements are met: (1) the issue in the two proceedings is identical; (2) the issue was actually litigated and was essential to a final decision on the merits in the prior proceeding; (3) the party sought to be precluded had a full and fair opportunity to be heard on that issue; (4) the party sought to be precluded was a party or was in privity with a party to the prior proceeding; and (5) the prior proceeding was the type of proceeding to which preclusive effect will be given.

Area(s) of Law:
  • Land Use

Oakleigh-McClure Neighbors et al v. City of Eugene

Failure to provide an intervening party with notice of a hearings officer’s decision and with notice of an appeal hearing prejudices the intervening party’s right to participate in the planning commission hearing on the appeal of that hearings officer’s decision.

Area(s) of Law:
  • Land Use

Oregon Coast Alliance v. Curry County

Under OAR 660-033-0130(2)(a), “design capacity” cannot be properly determined based on the applicant’s representations under normal operation regarding the number of likely users of a structure (e.g., a proposed golf course).

Area(s) of Law:
  • Land Use

Stavrum v. Clackamas County

Clackamas County Zoning and Development Ordinance (ZDO) 309.03(F) specifically addresses the exact use and definition of “stables,” and allows non-commercial stables as a primary use (as contrasted with ZDO 309.05(A)(14), which treats commercial stables as a conditional use).

Area(s) of Law:
  • Municipal Law

Stevens v. City of Island City

Island City Development Code (ICDC) 2.02(E) does not require the city council to defer to an interpretation made by the planning official or planning staff, nor does ICDC 2.02(E) require the city council to end the interpretative process at the planning official’s desk.

Area(s) of Law:
  • Municipal Law

Oregon Pipeline Company, LLC. v. Clatsop County

Consistent with OAR 660-006-0025(4)(q) and pursuant to ORS 197.835(9)(a)(D), a county may properly permit natural gas transmission lines in Agricultural Forest (AF) and Forest-80 (F-80) zones.

Area(s) of Law:
  • Land Use

Oregonians in Action Legal Center v. City of Lincoln City

In relation to the Lincoln City ordinances, LUBA clarified that the needed housing statute, ORS 197.303(1), did not extend to vacation homes, and that the Housing Element referencing “seasonal residents seeking shelter” was limited to part-time residents and excluded temporary tourists.

Area(s) of Law:
  • Municipal Law