Landwatch Lane County v. Lane County
(1) Where a local code provision implementing OAR 660-006-0029, which in turn implements Goal 4, requires a county to site forest dwellings by “weigh[ing] together” a number of siting factors with various fire-safety design standards, a local government does not err by failing to treat each factor as a stand-alone criterion. (2) Where a local code provision requires that “[t]he amount of forest lands used to site access roads . . . be minimized,” and where a local government concludes that an access road complies with that provision without interpreting the term “minimized” or providing an analysis of alternatives or an explanation of why better alternatives do not exist, LUBA will remand for the local government to adopt an adequate interpretation and adequate findings. (3) Where a local code provision does not expressly require expert testimony to establish compliance, and where the record contains no expert testimony demonstrating a lack of compliance, a local government does not err by relying on lay testimony with personal knowledge in determining compliance.
Area(s) of Law:- Land Use
O’Connor v. Clackamas County
While the doctrine of issue preclusion does not generally apply to issues decided by local governments, a local government does not err in applying it to issues decided by federal courts.
Area(s) of Law:- Land Use
Campbell v. Columbia County
(1) Under ORS 197.829(1)(d), where a county code provision implementing ORS 215.130(10)(b) provides that nonconforming uses “may be resumed if the discontinuation is for a period of less than 1 year,” LUBA will affirm a county’s interpretation of the word “discontinuation” if it is not inconsistent with the dictionary definition of the word “interruption” in ORS 215.130(7)(a). (2) A local government does not err in relying on previously adopted code provisions to implement a later enacted statute where the statute neither prevents it from doing so nor requires it to adopt new code provisions pursuant to it. (3) While LUBA has held that, where a nonconforming use is actually several aggregated but discrete uses, the right to continue one of those uses can be lost through discontinuance, a mobile home park is a unified use for which vacancy of individual spaces does not lead to partial discontinuance. (4) Where a decision is a “land use decision” under ORS 197.825(1), LUBA may reverse or remand the decision where the local government “[i]mproperly construed the applicable law,” regardless of whether the “applicable law” is a land use regulation under ORS 197.015(10)(a)(A).
Area(s) of Law:- Land Use
Arbor Lodge v. City of Portland
Under ORS 197.015(10)(a), a decision granting an extension of a building permit application pursuant to International Building Code 2007, the Oregon Structural Specialty Code, and local code provisions governing building permit applications is not a land use decision.
Area(s) of Law:- Land Use
Scenic Fruit Company, LLC v. Multnomah County
(1) Where a local government enters evidence into the record regarding the nature and extent of a nonconforming use, but where the applicant testifies that the nature and extent is less than that indicated by the evidence, a local government does not err by ignoring the evidence it entered into the record and relying instead on the applicant’s testimony. (2) Where a local code provision provides that a presumption that a nonconforming use has been lost due to reduced intensity can be rebutted by evidence that “long-term fluctuations are inherent in the type of use being considered,” while evidence that the applicant’s business model depends entirely on sporadic and intermittent local market demand can serve that purpose, an applicant must cite evidence linking the reduction in question to local market conditions or other circumstances that could be described as “long-term fluctuations” “inherent in” the industry. (3) Where a local government finds in its verification of a nonconforming use that the use complies with a particular local code provision and therefore requires no nonconforming use verification with respect to that provision, the local government errs by subsequently limiting the use more than the local code provision where the local code provision has not changed.
Area(s) of Law:- Land Use
Caldwell Farms, LLC v. City of Corvallis
(1) Where a petitioner timely files its NITA and is only prevented from serving copies on required persons because the local government declines to release those persons’ contact information, LUBA will not dismiss the appeal absent substantial prejudice to the parties. (2) Under ORS 222.127, while cities are prohibited from referring annexations to their voters when the listed criteria are met, they may still apply other code provisions to the application.
Area(s) of Law:- Land Use
1000 Friends of Oregon v. Linn County
Where local code provisions provide that the potential impact of development on sensitive habitat be assessed “on planning permit applications for . . . zone and plan amendments,” or that “[l]and use proposals . . . that have undesirable impacts on [sensitive fish and wildlife habitats] shall be reviewed during the plan amendment[ and] zone amendment . . . process,” a local government errs by deferring that assessment and review until the development phase.
Area(s) of Law:- Land Use
KB Trees, LLC v. Washington County
Where a local government concludes that a condition of approval is sufficient to ensure compliance with applicable approval criteria, the fact that the findings reject an alternative condition based on arguably irrelevant considerations provides no basis for reversal or remand where the petitioner does not establish that the imposed condition is in fact not sufficient to ensure compliance with applicable approval criteria.
Area(s) of Law:- Land Use