Land Use Board of Appeals (14 summaries)
Tylka v. Clackamas County
Where the Hearings Officer sufficiently identified the relevant standards and criteria, stated the relied upon facts, and explained the justification for the land use decision, LUBA will find that the local government applied the necessary subjective provisions to justify their land use decision as to a property setback requirement under ZDO 704.04(A). In the absence of any challenge to the officer’s application of ZDO 704.04(A), petitioner’s argument will not provide a sufficient basis for reversal or remand.
Area(s) of Law:- Land Use
Jenkinson v. Lane County
Prior to adopting a home rule charter, where the legislature has provided the local government with the authority to adopt standards "necessary to carry out development patterns or plans... to promote the public health, safety and general welfare", LUBA will construe such power broadly and determine that the county has adequate authority to regulate the division of land more stringently than state law.
Area(s) of Law:- Land Use
Bergmann v. City of Brookings
1) Where a local government fails to make a final decision within 120 days, and where the applicant does not engage in mediation, LUBA will find that the application is not terminated pursuant to ORS 227.181(2)(b) because the intention of the legislature was to "close a loophole", not allow the local government to "sandbag" a remanded application through inaction. 2) When an issue was not raised with sufficient detail during local proceedings, LUBA will find that the issue was waived. ORS 197.797(1).
Area(s) of Law:- Land Use
Gould v. Deschutes County
Where a local government's decision is excluded from the definition of a "land use decision" under ORS 197.015(10)(b)(H)(i-iii), LUBA will hold that they lack jurisdiction.
Area(s) of Law:- Land Use
Central Oregon Landwatch v. Deschutes County
1) Where an issue is previously conclusively decided against a petitioner in a final reviewable LUBA decision, LUBA will consider the issue waived. 2) Where DLCD issues order acknowledging an amended land use ordinance is sufficient to ensure consistency with Goal 14, LUBA will find that no exception to Goal 14 is required. 3) Where a county’s comprehensive plan limits the intensity of rural industrial uses beyond what is allowed by regulation in unincorporated communities, LUBA will hold that limitation is "independently sufficient" to demonstrate a PAPA's compliance with Goal 14, and analysis under the Shaffer test is not be required.
Area(s) of Law:- Land Use
House v. City of Bend
Where a petitioner does not develop a response to local government’s argument that its decision was not a “land use decision” pursuant to ORS 197.015(10)(a)(A) because it applied a design standard rather than a land use regulation, LUBA will hold that the petitioner has failed to meet their burden of establishing that the challenged decision is a "land use decision" under Billington v. Polk County, 703 P2d 232 (Or. 1985). Accordingly, LUBA will deny jurisdiction.
Area(s) of Law:- Land Use
1000 Friends of Oregon v. Linn County
(1) Where a petition for review is deficient under OAR 661-010-0030(2) (relating to formatting requirements) and (4) (relating to substantive requirements), LUBA will hold that a correction to the petition’s formatting alone is allowable under OAR 661-010-0030(3) (as distinguished from an amendment to the petition’s substance which, under OAR 661-010-0030(6), is allowable only with permission from LUBA). (2) Where a petitioner’s claimed errors are discernable from their petition for review despite their failure to set out separate assignments of error, LUBA will hold that the substantial rights of the other parties were not prejudiced. (3) Where a petitioner’s preservation statement is inadequate under OAR 661-010-0030(4)(d), but it is possible to ascertain from the record citations in their reply brief where they allege the issues raised in the petition for review were preserved, LUBA will hold that the inadequacy of the preservation statement is a technical violation and that the substantial rights of the other parties were not prejudiced.
Area(s) of Law:- Land Use
Hurst et al. v. City of Rogue River
1) Where a local government chooses one of two procedural pathways to revoke a CUP, and the applicant makes no showing of a procedural error, that the applicant would have preferred the other pathway is immaterial; 2) Where a local ordinance places the burden of proof on the proponent of a CUP-related proposal, LUBA will hold that the burden of proof rests with the local government applying to revoke a CUP, and not with the party who initially applied for the CUP; 3) Where a local ordinance employs a requirement of proof of a “public need” served, LUBA will hold that it is a “highly subjective standard,” and will decline to apply the “clearly supports” standard from ORS 197.835(11)(B), which is only appropriate where approval standards are objective.
Briggs et al v. Lincoln County
ORS 215.130(5) provides: "The lawful use of any building, structure or land at the time of the enactment or amendment of any zoning ordinance or regulation may be continued,” and “[a] change of ownership or occupancy shall be permitted." “[W]hen a local enactment is found incompatible with state law in an area of substantive policy, the state law will displace the local rule.” La Grande/Astoria v. PERB, 576 P2d 1204, aff’d on reh’g, 586 P2d 765 (1978).
Area(s) of Law:- Land Use
Gould v. Deschutes County
1) Where a final master plan places a limitation on an aspect of a development, that limitation will be held to have effect following modifications to other areas of the master plan. 2) Where an interpretation of two applicable provisions harmonizes and gives them both effect, that construction will be upheld.
Area(s) of Law:- Land Use
Gould v. Deschutes County
Generally, parties in quasi-judicial land use proceedings have a right to present and rebut evidence. Fasano v. Washington Co. Comm., 507 P2d 23 (1973). However, "there is no unlimited right to rebut rebuttal evidence, and Fasano does not require endless opportunities to rebut rebuttal evidence." Rice v. City of Monmouth, 53 Or LUBA 55, 60 (2006), aff’d, 154 P3d 786 (2007).
Area(s) of Law:- Water Rights
Kulongoski v. City of Portland
Portland City Code 33.825.040 allows a review body to approve modifications of site-specific development standards that “better meet design guidelines” and are consistent with the “purpose of the standard for which a modification is requested.”
Area(s) of Law:- Land Use
Oregon Coast Alliance et al v. Clatsop County
1) Where the hearings officer fails to address adequately suitability issues raised during the petition for review, as required under LAWDUC 2.4030(3)(c), LUBA will remand in order to adopt findings on the issue. 2) Where the local government's interpretation of the purpose of its comprehensive land use regulations is entirely consistent with the regulatory action taken, LUBA shall affirm the regulatory action. ORS 197.829(1).
Area(s) of Law:- Land Use
Friends of Yamhill County v. Yamhill County
LUBA will hold that an issue was not raised below with “sufficient specificity” to be preserved, Boldt v. Clackamas County, 21 Or LUBA 40, 46, aff'd, 107 Or App 619 (1991) where, during local proceedings, the issue was: 1) merely referenced in the context of an alternate argument, or 2) expressed in terms of generalized concerns, but raised before LUBA in technical detail.
Area(s) of Law:- Land Use