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 7 summaries

Kamps-Hughes v. City of Eugene

For purposes of ORS 197.312(5), the requirement that an accessory dwelling unit be residential depends neither on the identity of the residents nor their legal estate with respect to the dwelling, nor does the requirement that an accessory dwelling unit be “used in connection with” a single-family dwelling mean that the use of the former must be incidental or subordinate to that of the latter.

Area(s) of Law:
  • Land Use

McCaffree v. Coos County

Where a party has the opportunity to object to a procedural error before the local government during a legislative proceeding, but fails to do so, that error cannot constitute grounds for reversal or remand of the resulting decision. This obligation exists independently of the “raise it or waive it” requirement of ORS 197.763(1), which does not apply to legislative proceedings.

Area(s) of Law:
  • Land Use

City of Albany v. Linn County

Under LCC 930.700(E), the county must obtain city approval when an interchange in density occurs by any means, not just when the subject property’s zoning is changed through a zoning map amendment or when the density allowed in the zone is changed through a text amendment to the LCC.

Area(s) of Law:
  • Land Use

Gillette v. Lincoln County

Resolution of vested rights claims, even if submitted in a form or manner different from that required by the county, involves the “discretionary approval of a proposed development of land” and is therefore a “permit” decision under ORS 215.402, requiring notice and an evidentiary hearing or an opportunity to appeal decisions to a de novo evidentiary hearing before a different review body.

Area(s) of Law:
  • Land Use

Gould v. Deschutes County

Under DCC 18.113.070(D), the public is entitled to a hearing on whether a mitigation plan will result in no net loss or degradation of fish and wildlife resources.

Area(s) of Law:
  • Land Use

Currie v. Douglas County Board of Commissioners

Under ORS 197.835(9)(a)(C), county decisions must be supported by substantial evidence, which is evidence a reasonable person would rely on to make a decision, considering the whole record.

Area(s) of Law:
  • Land Use

Carkulis v. Lincoln County

Under ORS 197.835(9)(a)(B), in order to establish a procedural error, the petitioner must identify the procedure allegedly violated.

Area(s) of Law:
  • Land Use

July 5 summaries

Velasquez v. Jackson County

Fact finders have discretion to weigh evidence and choose what evidence to rely on in making decisions. A petitioner’s desire that a decision maker rely on different evidence does not provide a basis for reversal or remand of the challenged decision.

Area(s) of Law:
  • Land Use

Vaccher v. City of Eugene

Under ORS 197.825(1) and EC 9.1070(3), LUBA lacks jurisdiction to review utility public way use permit decisions concerning areas that are not designated on the zoning map.

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

Under ORS 215.790(2)(e)(A), in determining whether a forest-zoned parcel is exempt from the 80-acre minimum parcel size, the county must consider the parcel that is the subject of the application for a partition, not the unit of land of which the subject parcel was considered a part on November 4, 1993.

Area(s) of Law:
  • Land Use

Madrona Park, LLC v. City of Portland

Under ORS 197.015(10)(b)(B), LUBA lacks jurisdiction to review building permit decisions made under clear and objective standards. Standards are not clear and objective if they are ambiguous—that is, if they can plausibly be interpreted in more than one way—or if they impose subjective, value-laden analyses.

Area(s) of Law:
  • Land Use

Leyden v. City of Eugene

Under ORS 197.015(10)(b)(B), LUBA’s jurisdiction depends on applicable land use standards and does not turn on comments or arguments in the record that led to the decision. Just because a decision is wrong, erroneous, or unauthorized does not mean that it qualifies as a land use decision subject to LUBA’s jurisdiction.

Area(s) of Law:
  • Land Use

August 13 summaries

Morgan v. Jackson County

(1) An applicant need not submit physical or visible evidence in order to demonstrate the establishment of a nonconforming use, nor may a county reject verification of a nonconforming use simply because the county deems the size or scope of the use to be too small. (2) In determining the nature and extent of a nonconforming use, a county must be careful to describe it in a manner that does not inadvertently allow unauthorized expansions or alterations.

Area(s) of Law:
  • Land Use

DLCD v. Douglas County

(1) Under ORS 197.835(6), LUBA must reverse or remand a plan amendment if it is not in compliance with the statewide planning goals. However, appellate review of plan amendments is limited if the challenged decision either demonstrates compliance with all implicated goals or affirmatively establishes that the local government will review future decisions applying the new designations for goal compliance. (2) Goal 2 requires that decisions be coordinated and supported by an adequate factual basis. In coordinating planning actions within their jurisdictions, although counties need not follow the requests of commenting parties, they must adopt findings responding to legitimate concerns. To have an adequate factual base, the county’s decision must include findings based on substantial evidence in the record, or provide argument with citations to the record.

Area(s) of Law:
  • Land Use

Friends of Yamhill County v. Yamhill County

Under ORS 215.283(4)(d), (1) determining whether commercial events are “incidental and subordinate” to an existing farm use does not require a comparison of revenue between the activities and, (2) in order for such events to be considered “necessary to support” the farm uses on the subject property or the agricultural enterprises in the area, the events must be “essential in order to maintain the existence” of either the uses or the enterprises.

Area(s) of Law:
  • Land Use

DLCD v. City of Klamath Falls

In order to amend a UGB, there must be a demonstrated need for land under both of the Goal 14 land-need subsections.

Area(s) of Law:
  • Land Use

Restore Oregon v. City of Portland

ESEE analyses that use more conservative assumptions for petitioner’s property than for other properties, resulting in a higher estimate of economic impact to petitioner’s property, provide no basis for reversal or remand.

Area(s) of Law:
  • Land Use

Oregon Department of Transportation v. Grant County

Under OAR 660-023-0040, while the county may consider a broad scope of ESEE consequences, it may not fail to consider the impacts of the conflicting use on the Goal 5 resource site.

Area(s) of Law:
  • Land Use

Wetherell v. Douglas County

ORS 214.441 does not provide an independent basis to approve dwellings on EFU-zoned property.

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

(1) While the focus under ORS 197.247(1)(b)(A) is on the number of lots or parcels, and not land area, there is only one test area, not two. (2) Where adverse expert testimony is submitted, some level of expertise may be required to establish the sufficiency of a response to the adverse expert testimony.

Area(s) of Law:
  • Land Use

M & T Partners, Inc. v. City of Salem

Voluntary descriptions, statements, or representations made during rezoning proceedings are not binding on subsequent proposals unless they are memorialized in conditions of approval.

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

(1) Uses that are allowed conditionally in resource zones under state law may only be allowed conditionally in local ordinances, notwithstanding any DLCD model ordinance provisions to the contrary. (2) Where an entire decision is appealed to LUBA, and LUBA sustains assignments of error, it is inappropriate for LUBA to affirm in part and remand in part.

Area(s) of Law:
  • Land Use

VanSickle v. Klamath County

(1) Under ORS 197.829(1), LUBA must affirm a county’s interpretation of its own regulations if it is not inconsistent with its express language or underlying purpose or policies, and not contrary to state law. (2) Where a party does not challenge responsive findings, that party does not establish a basis for reversal or remand.

Area(s) of Law:
  • Land Use

Central Oregon Landwatch v. Deschutes County

(1) The county, having previously determined that a property is not agricultural land by not including the property in inventory maps of agricultural lands is not required to revisit that original determination. (2) Under OAR 660-023-0030, while local government are prohibited from applying Goal 5 processes to non-significant resource sites, they may still regulate surface mining of those sites in other ways.

Area(s) of Law:
  • Land Use

Bohan v. City of Portland

Under PCC 33.110.235.C.2, a covered deck that it attached to a dwelling, but not enclosed, can satisfy the minimum outdoor area requirement.

Area(s) of Law:
  • Land Use

September 5 summaries

Klein v. Lane County

A special use permit that explicitly does not address a prior verified nonconforming use does not require application of nonconforming use criteria.

Area(s) of Law:
  • Land Use

Northwest District Neighborhood Association v. City of Portland

(1) LUBA must affirm a local governing body's interpretation of its own land use regulations if the interpretation is not inconsistent with the express language, purpose, or policy of that regulation, even when presented with a stronger or more logical interpretation. (2) Under ORS 187.828(2)(a), the existence of evidence in the record supporting a decision different from that which the local government made shall not be grounds for reversal or remand if there is evidence in the record to support the decision which the local government actually made.

Area(s) of Law:
  • Land Use

Carroll v. City of Malin

The mere fact that a decision-maker is related to individuals who own property close to an applicant and who oppose the applicant’s project does not establish that the decision-maker is motivated by improper bias.

Area(s) of Law:
  • Land Use

WKL Investments Airport LLC v. City of Lake Oswego

Under ORS 222.750(2), the determination of whether the territory is partially or entirely encompassed by the city’s boundaries is made when the annexation is authorized by the governing body, not when the annexation becomes effective. Thus, different effective dates in one annexation ordinance do not result in an impermissible incremental annexation.Petitioners appeal the city’s annexation of 1.5 acres of property pursuant to ORS 222.750(2). ORS 220.750(2), also known as the island annexation statute, authorizes a city to annex territory that is completely encompassed by a city’s boundaries without the affected property owners’ consent.

Area(s) of Law:
  • Land Use

Chang v. Clackamas County

(1) Under OAR 660-006-0025(5)(b), in determining whether a proposed solar facility will not significantly increase risks to fire suppression personnel, the decision-maker must compare the fire hazard risks posed by the existing use to those posed by the proposal. (2) Ineffective conditions may result in remand where the condition is necessary to ensure compliance with relevant approval criteria.

Area(s) of Law:
  • Land Use

October 10 summaries

Watts v. City of Tualatin

(1) LUBA reviews only the local government’s final written decision and not what individual parties, staff, or members of the decision making body stated during the proceedings. (2) In reviewing a substantial evidence challenge, LUBA's role is not to reweigh the evidence, but rather to determine if a reasonable person, viewing the whole record, could reach the conclusion that the decision maker reached.

Area(s) of Law:
  • Land Use

Dobson v. City of Hines

(1) Under ORS 197.830(9), Notice of Intent to Appeal plan and land use regulation amendments must be filed not later than 21 days after notice of the decision sought to be reviewed is mailed or otherwise submitted to parties entitled to notice under ORS 197.615. (2) Under ORS 197.763, whether the petitioner received notice of a hearing does not affect whether the city mailed it.

Area(s) of Law:
  • Land Use

Van Dyke v. Yamhill County

(1) The fact that a governing body enters into a design contract for a proposed project in their proprietary capacity as property owner does not necessarily mean that that they are incapable of determining the merits of a related land use application in their representative capacity as decision makers. (2) Under ORS 215.422(3), communications between county staff and the governing body regarding a design contract before land use proceedings commence are not ex parte contacts. (3) Under ORS 215.296(1), when there is evidence that an allowed nonfarm use will have impacts on farm uses, a county may not respond with conclusory findings, unsupported by substantial evidence. (4) While it is permissible for a local government to find compliance with an approval criterion by imposing conditions, but to allow the details of those conditions to be determined during subsequent administrative proceedings, the local government must at least consider different feasible options at a time and with sufficient detail to allow participants an opportunity to evaluate their effectiveness and provide input. (5) Under ORS 215.296(1), in analyzing and responding to the impacts of nonfarm uses on surrounding farmland, counties may not merely determine that it is “feasible” to respond to those impacts in a subsequent planning process without evaluating and responding to specific expert testimony with findings. (6) Under ORS 215.296, spraying and using other peoples’ property without permission are not “accepted farm practices.” In addition, while the impacts of nonfarm uses on surrounding farmland must be evaluated on a farm-by-farm and practice-by-practice basis, an evaluation of the cumulative impacts on all farm practices on all impacted farms is not required. (7) In considering a conditional use permit application, counties must apply all relevant comprehensive plan goals and policies.

Area(s) of Law:
  • Land Use

Van Dyke v. Yamhill County

LUBA will only exercise its jurisdiction under the judicially created significant impacts test if the petitioner identifies non-land-use standards that apply to the decision and would govern LUBA’s review, and that have some relationship to the use of land.

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

An unlawful division of land creates two new, undevelopable units rather than an undevelopable unit and a lawful remainder.

Area(s) of Law:
  • Land Use

Save TV Butte v. Lane County

Whether a local government’s errors under ORS 197.610 require remand depends not on whether the petitioners can demonstrate prejudice to their own substantial rights, but on whether the errors call into question whether the process performed its function.

Area(s) of Law:
  • Land Use

Waveseer of Oregon, LLC v. Deschutes County

Under ORS 215.416(8)(a), permit approval standards and criteria must inform interested parties of the basis on which an application will be approved or denied.

Area(s) of Law:
  • Land Use

Lundeen v. City of Waldport

Under WDC 16.60.030(C)(4), construction activities, including those associated with constructing a road to the subject property, are part of a development and must be evaluated to determine whether they will create a drainage or pollution problem outside the planned area.

Area(s) of Law:
  • Land Use

Simons Investment Properties, LLC v. City of Eugene

If a city ordinance repeals the standards of a particular designation, that designation no longer applies in the city, even if the ordinance does not expressly repeal the prior ordinance applying the designation in the first place.

Area(s) of Law:
  • Land Use

Bielefeld v. Lane County

(1) The pertinent date for determining local jurisdictional issues is the date of the final decision. (2) Under ORS 215.740(4)(d), even if an approved site plan for a replacement dwelling shows that it will be constructed on a different tract, if the original dwelling is sited on the subject property and the building permit for the replacement dwelling limits its construction to the footprint of the original dwelling, a forest template dwelling cannot be approved on the subject property.

Area(s) of Law:
  • Land Use

November 3 summaries

Hulme v. City of Eugene

Under EC 9.2751(1)(b), for purposes of calculating net density, areas that are “reserved for the exclusive use of the residents” means areas that residents have the power to exclude nonresidents from using or that nonresidents use only incidentally by invitation (i.e., guests) or for the benefit of the residents (i.e., employees).

Area(s) of Law:
  • Land Use

Piculell v. City of Eugene

Under ORS 197.307(4), (1) the fact that different decision makers rely on different rationales in reaching similar conclusions does not mean that a standard is unclear; (2) failing to address future hypothetical changes to land use regulations does not render a condition unclear; and (3) a standard is more likely to be “clear and objective” where its purpose is clear from its text.

Area(s) of Law:
  • Land Use

Norman v. Washington County

(1) Under ORS 174.010, multiple code provisions should be construed so as to give effect to each. (2) Under WCDC 501-8.5(E), the time limit applicable to interim arterial access may be determined by the occurrence of an event, such as the availability of alternate access, rather than a specific date.

Area(s) of Law:
  • Land Use

December 5 summaries

1000 Friends of Oregon v. Jackson County

(1) A use need not be located on rural land outside a UGB in order to support an exception under OAR 660-004-0022(3)(c). (2) An exception may not be taken under OAR 660-004-0022(3)(c) to authorize an 80-acre photovoltaic solar power generation facility on high-value farmland because such a facility is not “industrial development” and because such an exception does not relate to “siting.”

Area(s) of Law:
  • Land Use

Friends of French Prairie v. Oregon State Board of Aviation

Under ORS 197.015(10)(a)(B), a letter from a state agency which merely conveys facts about events that have already occurred is not a final decision and, therefore, not a land use decision for purposes of establishing LUBA’s jurisdiction.

Area(s) of Law:
  • Land Use

Fairmount Neighborhood Association v. City of Eugene

LUBA will not second guess a decision maker’s choice between conflicting evidence, including expert testimony, so long as a reasonable person could decide as the decision maker did.

Area(s) of Law:
  • Land Use

Underwood v. Clackamas County

Under ORS 215.130(9), in determining whether a proposed alteration to a nonconforming use will have any “greater adverse impact on the neighborhood,” the county must compare the proposed alteration with the originally verified nonconforming use.

Area(s) of Law:
  • Land Use

H2D2 Properties LLC v. Deschutes County

(1) A petitioner errs by requiring the reviewing body to comb the record to determine if an issue is preserved. (2) A local government is not required to condition an approval, rather than deny a noncompliant application.

Area(s) of Law:
  • Land Use

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