January 8 summaries
Eagle-Eye v. City of Veneta
Under ORS 197.835(4)(a), while a petitioner may raise new issues to LUBA if the local government failed to list applicable approval criteria, LUBA will refuse to allow such issues where petitioners argue the local government failed to identify the definitions section of its code as an applicable criterion but where petitioners do not establish that the local government was in fact required to do so.
Area(s) of Law:- Land Use
Kimbrell v. City of Lincoln City
Under LCC 14.47.020(D), the required setback from a coastal bluff must be determined before any excavation or grading activities associated with the construction of a single-family dwelling take place.
Area(s) of Law:- Land Use
York v. Clackamas County
(1) The “primary use” of property zoned RRFF-5 is the use and occupancy of a dwelling structure and does not include driving or walking. (2) Where a criterion requires a finding that something is missing, while that finding cannot be supported by the absence of evidence (i.e., no evidence that the criterion is not satisfied), it can be supported by evidence of absence (i.e., affirmative evidence that the criterion is satisfied because the relevant thing is in fact missing).
Area(s) of Law:- Land Use
McCaffree v. City of North Bend
(1) Under ORS 197.015(10)(b)(H), where a LUCS merely identifies the required future land use reviews without going further to approve or deny them, LUBA lacks jurisdiction. (2) Arguments that the proposed use underlying a LUCS poses a risk of explosion are insufficient to establish that the residents of a city are adversely affected and therefore have standing to challenge the LUCS where the LUCS itself authorizes no development activity.
Area(s) of Law:- Land Use
Dooley v. Wasco County
(1) Under OAR 660-004-0028(1)-(2), the mere existence of residential uses near a property proposed for an irrevocably committed exception to Goal 4 (Forest Lands) does not demonstrate that such property is necessarily committed to a non-resource use. (2) Under OAR 660-004-0028(3), conflicts resulting from odors, noise, spraying, and dust are not sufficient to support an irrevocably committed exception.
Area(s) of Law:- Land Use
Wachal v. Linn County
Under ORS 197.015(10)(b)(A), where a local government, in reaching a decision, is not required to evaluate anything by discerning or comparing, and where the evidentiary support for the existence facts on which the decision relies is clear and unambiguous and does not require the application of any legal principles, such a decision does not require the exercise of “legal judgment.”
Area(s) of Law:- Land Use
Buffalo-Bend Associates, LLC v. Clackamas County
Where an applicant not only argues generally that the local government can apply only clear and objective standards and conditions under ORS 197.307(4), but more specifically that certain terms in certain local code provisions that the local government applied are undefined and subjective, the local government’s failure to respond to those arguments requires remand.
Area(s) of Law:- Land Use
Central Oregon Landwatch v. Deschutes County
(1) For purposes of establishing a lot of record dwelling under ORS 215.705, a trust qualifies as a “business entity,” and therefore an “owner,” and there is no limit on the number of transfers that can take place before an owner applies for such a dwelling. (2) Where a dwelling has been approved for a parcel but not yet built, that parcel “include[s] a dwelling” for purposes of ORS 215.705(1). (3) Where one parcel is owned by an applicant individually and another is owned by a trust for which the applicant serves as trustee, those parcels are not “under the same ownership” for purposes of ORS 217.010(2).
Area(s) of Law:- Land Use
February 9 summaries
Ellis v. Multnomah County
Under MCC 35.2690, a life estate in real property is a “greater than possessory” interest for purposes of determining whether two contiguous lots were “under the same ownership” and therefore qualify as lots of record under MCC 35.2675(A).
Area(s) of Law:- Land Use
City of Albany v. Linn County
(1) Mere statements in a comprehensive plan that an Urban Growth Boundary Management Agreement governs certain procedures are not sufficient to incorporate the latter into the former. (2) Whether a county comprehensive plan meets the Goal 2 requirement that it be consistent with those of local governments is evaluated with respect to individual development applications, not county code text amendments. (3) A county meets the Goal 2 requirement that it coordinate its comprehensive plan and implementing measures with those of local governments where it provides the local governments with notice of proposed text amendments and an extended open record period, responds to issues raised, and incorporates comments into the amendments.
Area(s) of Law:- Land Use
Marek v. City of Corvallis
(1) Under ORS 197.835(4), defective notice does not divest local governments of jurisdiction over applications but allows parties to raise issues related to missing approval criteria for the first time at LUBA. (2) Because decision-makers are not participants in local proceedings, issues raised by them are not preserved for purposes of ORS 197.763(1). (3) Under ORS 197.825(2)(a), where a petitioner fails to raise an issue in their appeal statement, they have not “exhausted all remedies available by right” and are therefore precluded from raising it at LUBA.
Area(s) of Law:- Land Use
Kuether v. Washington County
(1) PLSS surveys do not create discrete legal parcels but are simply meant to facilitate the description of land for future conveyance. (2) Under ORS 92.010(3)(a)(B), where no planning, zoning, or land division laws apply, an unrecorded survey is not sufficient to create a discrete legal parcel.
Area(s) of Law:- Land Use
Urstadt v. Washington County
PLSS surveys do not create discrete legal parcels but are simply meant to facilitate the description of land for future conveyance.
Area(s) of Law:- Land Use
Schofield v. Douglas County
A decision determining whether a condition of permit approval is satisfied is not a land use decision under ORS 197.015(10)(a)(A).
Area(s) of Law:- Land Use
Mumper v. City of Salem
(1) Where local code provisions ascribe significance to a master plan’s “goals” as well as its “policies,” a local government errs by approving a sub-area plan after addressing the master plan’s “principles” without addressing the strategies it discusses to actualize those principles. (2) Balancing master plan principles against one another may be appropriate where multiple principles require incompatible results, but it is not appropriate where all of the principles can be complied with. (3) The fact that a sub-area plan furthers the master plan’s principles is insufficient to demonstrate that it is consistent with those principles.
Area(s) of Law:- Land Use
Carson Property LUBA Appeal Inc. v. City of Corvallis
(1) In evaluating housing need, a local government may rely on deficits reported in its acknowledged Buildable Lands Inventory, regardless of whether subsequent re-zonings may have eliminated those deficits. (2) A local government determination of whether a “public need” for certain types of housing exists is not necessarily dependent on or limited to consideration of its acknowledged Buildable Lands Inventory, and may include a need for increased housing supply and diversity of housing types and locations.
Area(s) of Law:- Land Use
Kamps-Hughes v. City of Eugene
Under ORS 197.312(5)(a), (1) local governments have some regulatory discretion that could have the effect of prohibiting an ADU on a particular property, so long as the regulation is reasonable and related to siting and design; (2) “siting” regulations are those which specify the location of an ADU on a site, rather than where ADUs are allowed in an entire zone based on factors such as traffic, livability, and existing density; and (3) while regulations prohibiting ADUs on alley access lots, requiring a minimum lot size for ADUs in certain neighborhoods, requiring minimum lot dimensions for ADUs, and limiting ADU occupancy in certain zones do not relate to siting or design, regulations limiting vehicle use areas, limiting the number of covered parking areas, and setting maximum dimensions and minimum setbacks for garages and driveways on alley access lots in certain areas relate to both siting and design.
Area(s) of Law:- Land Use
March 6 summaries
Dressel v. City of Tigard
Under Dolan v. City of Tigard, if the subject property can be physically developed without further land use review, some level of exactions may be appropriate. In the absence of any ability to physically develop the property without further land use review, no exactions pass constitutional scrutiny.
Area(s) of Law:- Land Use
Beaverton Business Owners, LLC v. City of Beaverton
(1) Where a local code defines one word in two different ways, a local government does not err in relying on one of those definitions where that definition was the only one in effect when the local code provision at issue was enacted and where the other definition was adopted solely to comply with federal law. (2) Where a local code provision is intended to allow “flexibility and originality,” uses the word “should,” and allows for the consideration of a list of factors, a local government does not err by refusing to require strict compliance with its terms.
Area(s) of Law:- Land Use
Sanga v. City of Eugene
(1) Under ORS 197.825(2)(a), where a petitioner fails to raise issues in their local appeal statement, they have not “exhausted all remedies available by right” and are therefore precluded from raising them at LUBA. (2) In order to demonstrate prejudice from procedural error, thereby warranting reversal or remand of a limited land use decision under ORS 197.828(2)(d), a petitioner must explain with some specificity what would have been different or more complete had the local government followed the correct procedure. (3) In order to raise a procedural error at LUBA, a petitioner must preserve it by objecting below if there is an opportunity to do so.
Area(s) of Law:- Land Use
Tarr v. Multnomah County
(1) Where statutory text is ambiguous, but where available legislative history strongly supports one interpretation over another, a local government errs by adopting the unsupported interpretation even if the supported interpretation could be construed as creating meaningless surplusage. (2) Where a local code provision allows conditional uses that are “consistent with the character of the area,” a local government does not err in approving a conditional use which generates greater traffic and noise impacts than uses allowed outright if a majority of the conditional uses generate similarly greater impacts.
Area(s) of Law:- Land Use
Lincoln Woods Apartments v. City of Lincoln City
(1) ORS 197.830(3) only applies where a petitioner is entitled to notice under state statute as opposed to local ordinance. (2) In order to demonstrate that notice of a proposed action did not reasonably describe a local government’s final actions under ORS 197.830(3), a petitioner must explain how the notice misled them. For such purposes, whether a petitioner was misled by a different notice of a different local proceeding on a different, legislative action is irrelevant, even if the two actions concern similar subjects.
Area(s) of Law:- Land Use
Friends of Yamhill County v. Yamhill County
Under ORS 215.283(4)(d)(A), in determining whether commercial events are “incidental and subordinate to existing commercial farm use of the tract,” counties must consider any relevant circumstances bearing on whether the existing commercial farm use remains the predominant use of the tract, including the nature, intensity, and economic value of the respective uses in addition to their relative frequency.
Area(s) of Law:- Land Use
April 3 summaries
Landwatch Lane County v. Lane County
Under ORS 215.417, any permits for residential development on resource land that received unlawful extensions prior to the effective date of the 2019 amendments to that statute have expired and may not be revived by virtue of those amendments.
Area(s) of Law:- Land Use
Oregon Coast Alliance v. City of Bandon
(1) That a petitioner merely disagrees with a local government’s conclusions provides no basis for reversal or remand. (2) Absent some requirement to the contrary, where a city council explains its reasons for concluding that a certain criterion is met, it need not explain why it reached a different conclusion than the planning commission.
Area(s) of Law:- Land Use
ODFW v. Lake County
(1) The prevailing party before a planning commission need not file a local appeal in order to exhaust their administrative remedies under ORS 197.825(2)(a). (2) Issues raised before a planning commission are timely for purposes of the “raise it or waive it” requirement at ORS 197.763(1), even if those issues are not raised with the same specificity before the final decision-maker. (3) The fact that an administrative rule does not expressly require compliance to be determined in the same proceeding as all other criteria are applied does not mean that a deferred determination of compliance need not be based on substantial evidence submitted in a proceeding with minimum procedural and participatory rights. (4) While it is possible for a local government to find compliance where further technical studies are necessary, such findings must at least be based on a draft mitigation plan or similar evidence.
Area(s) of Law:- Land Use
May 8 summaries
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
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
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
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
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
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
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
June 5 summaries
Van Dyke v. Yamhill County
(1) Where the only evidence that a county will use a proposed bridge for “fire control” is an affidavit that the bridge is designed to serve large fire vehicles, and where the construction agreement describes the bridge as part of a larger recreation trail, a county errs by concluding the bridge is a “[f]ire service facilit[y]” allowed outright under ORS 215.283(1)(s), rather than a transportation facility requiring conditional use approval under a local code provision. (2) A conditional use must secure land use approval prior to construction, regardless of whether the improvements will be used for conditional use purposes until land use approval is later obtained.
Area(s) of Law:- Land Use
Jones v. Clackamas County
(1) A local government errs in relying on a later enacted local code provision to interpret the effect of a previous quasi-judicial decision. (2) In making a statutory permit decision under ORS 215.416(8)(a), a local government errs in basing its decision on a previous quasi-judicial decision that has not been adopted by ordinance or regulation.
Area(s) of Law:- Land Use
Jones v. Clackamas County
(1) Where a local code provision requires individualized notice to property owners only when an application “relates to . . . a specific property,” the fact that the application referred to a proposed use at a specific street address, that the owner of that specific property signed the application, and that the application had a causal connection with and was the impetus for the local government’s decision is sufficient to establish that the application “relates to . . . a specific property” and that individualized notice was required, even where the local government’s decision applies to all property in a particular zone and does not examine any particular development proposal or the characteristics of any individual property. (2) Where a local code provision precludes a local government from processing an application “if the specific question raised . . . has already been decided through another land use permit application,” a local government does not err by processing an application for a similar use determination even though it previously denied a conditional use permit with which the similar use determination has some features in common.
Area(s) of Law:- Land Use
Tugaw v. Jackson County
Where a local code provision which implements state law contains different language from state law, but where the local government interprets the local code provision as identical to state law without interpreting the different language, LUBA will apply its own prior interpretations of the state law at issue where the local government offers no analysis supporting a different conclusion.
Area(s) of Law:- Land Use
Johnson v. City of Philomath
(1) Where an opponent argues before a local government that an application is incomplete, but does not argue that a particular state statute prohibits the local government from processing incomplete applications, the opponent may not raise compliance with the state statute for the first time on appeal to LUBA. (2) Where a party argues before a local government that a staff report was available only five days before a hearing, but does not argue that a particular local code provision requires the local government to provide staff reports seven days prior to the hearing, the party may not raise compliance with the local code provision for the first time on appeal to LUBA.
Area(s) of Law:- Land Use
July 6 summaries
Crowley v. City of Hood River
(1) Where LUBA seemingly addresses an issue in its opinion, but where the petitioner only raised that issue before the local government, in their reply brief, and at oral argument, and did not raise the issue in their petition for review, such petitioner has not “raised” and LUBA has not “decided” that issue for purposes of the law of the case doctrine. (2) A local government need not interpret the term “protect” the same way in the context of a statewide planning goal which does not protect a specific unique natural resource or area that it does in the context of a goal that does protect a specific unique natural resource or area, even where the definitions of “protect” in the relevant goal or comprehensive plan are identical.
Area(s) of Law:- Land Use
Simons Investment Properties, LLC v. City of Eugene
Where a local government determines, in applying a particular zone to property, that that property meets certain applicable criteria for the zone, it need not revisit that determination in considering subsequent applications to remove that zone from the property.
Area(s) of Law:- Land Use
1000 Friends of Oregon v. Morrow County
(1) LUBA will remand a county’s conclusion that an exception site provides a locational advantage under OAR 660-004-0022(3)(c) where that conclusion is based on an alternatives analysis which is inadequate to comply with OAR 660-004-0020(2)(b). (2) In the context of a reasons exception to redesignate property from Agricultural to Industrial, while speculation that the exception will hasten future rezonings in the area does not establish that the exception will not “cause only minimal loss of reproductive resource lands” under OAR 660-004-0022(3)(c), the fact that that an equal amount of land elsewhere in the county will be redesignated from Industrial to Agricultural also has no bearing on compliance with that criterion. (3) A county’s alternatives analysis is inadequate to comply with OAR 660-004-0020(2)(b) where the analysis rejects some alternatives based on existing use, contractual obligation, an unknown ownership transfer timeline, the mere presence of wetlands, undefined issues of facility proximity and interdependence, and the applicant’s objective of extending services in a particular direction.
Area(s) of Law:- Land Use
Mattson v. Lane County
Where a local code provides that (1) all applications must be submitted on “a form provided by the [Planning] Department”; (2) that certain applications must be reviewed pursuant to Type II procedures, but that those applications “may be reviewed” pursuant to Type I procedures in certain circumstances; and (3) that applications “shall not be considered accepted solely because of having been received,” the local government has discretion to reject an application filed on an incorrect form.
Area(s) of Law:- Land Use
Oregon Shores Conservation Coalition v. City of North Bend
(1) Where a comprehensive plan provision allows “minor navigational improvements” in a particular zone, which it defines as “alterations necessary to provide water access to existing or permitted uses in conservation management units,” an interpretation of that provision as not requiring that the use for which the alteration is needed and the alteration itself be located in the same zone is consistent with the provision’s express language; however, an interpretation of that provision as allowing alterations that are needed for a use that is not in a “conservation management unit” is inconsistent the provision’s express language. (2) Where a comprehensive plan management objective allows “a limited boat dock for transient recreation craft tie-up” in a particular zone, and the uses and activities matrix allows “docks” without limitation, but where a different comprehensive plan provision states that uses and activities matrixes are “subordinate” to management objectives, and that allowed uses and activities must be “consistent” with the management objectives, a local government errs by allowing non-limited boat docks in the zone. (3) Where a local code provision requires that a “declaration of anticipated noise levels” be attached to certain land use approvals and that applicants incorporate noise abatement strategies where noise levels are anticipated to exceed a certain threshold, the word “declaration” anticipates more than a statement from the applicant’s attorney, without supporting documents or studies, and a reasonable person would not rely on such statements alone to conclude that the noise threshold is not exceeded. (4) Where a local code provision prohibits development, including fill, in certain special flood hazard areas unless the cumulative effect of the development, when combined with all other existing and anticipated development, will not increase the base flood elevation (BFE) more than one foot, a reasonable person would not rely on a letter from a professional engineer, which provides that the “minimal amounts of fill placed below the BFE” would have no measurable effect on the BFE, to conclude that the provision is satisfied, where the letter does not quantify the amount of fill associated with the development, or address the cumulative effects of all other existing and anticipated development.
Area(s) of Law:- Land Use
Wachal v. Linn County
(1) Where a local code provision prevents a local government from receiving or considering any “evidence, argument, or testimony that would substantially change the application,” an interpretation of that provision as allowing additional supporting evidence that approval criteria are satisfied, as long as the proposed use, its location, and the approval criteria have not changed, is not inconsistent with the provision’s express language and is plausible. (2) Where an administrative rule requires that a farm operator “continue to play the predominant role” in the management of the farm, a reasonable person could rely on the farm operator’s testimony regarding their own management activities, and their status as the state license holder for the crop, to conclude that they play a predominant role, even where they have hired another company to perform certain tasks and provide consultation. (3) Where a local government relies on the past issuance of permits to conclude that an approval criterion is satisfied, a challenge to the local government’s procedure in issuing the permits provides no basis for reversal or remand where the permits are not the subject of the appeal.
Area(s) of Law:- Land Use
August 6 summaries
Nehmzow v. Deschutes County
(1) While failure to preserve an issue for review under ORS 197.763(1) and ORS 197.835(3) removes that issue from the scope of LUBA’s review, it does not deprive LUBA of jurisdiction to review the appeal. (2) Where a petitioner cites to over a hundred pages in each of its preservation of error statements, but where respondents do not argue that the issues were not raised during the local proceeding, where petitioner provides more focused record citations in their reply brief, and where it is evident from the challenged decision itself that the issues were raised during the local proceedings, such failure to adequately specify where issues were preserved in the petition for review is a technical violation that does not prejudice respondents’ substantial rights. (3) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a “youth activity center,” but where the local code does not define “youth activity center” or use that phrase elsewhere, a county violates the codification requirement at ORS 215.416(8)(a)—and therefore violates the requirement at ORS 475B.486(2) that local regulations of marijuana production facilities be “reasonable”—by applying that criterion to an application to develop a marijuana production facility. (4) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a “youth activity center,” but where the local code does not define “youth activity center” or use that phrase elsewhere, a county violates the codification requirement at ORS 215.416(8)(a) by applying a list of factors derived from other quasi-judicial proceedings to assist in determining whether a specific use is a “youth activity center.”
Area(s) of Law:- Land Use
Waveseer of Oregon, LLC v. Deschutes County
(1) Counties are not prohibited as a matter of law from applying separation buffers to marijuana production facilities in EFU zones. (2) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a “youth activity center,” but where the local code does not define “youth activity center” or use that phrase elsewhere, a county violates the codification requirement at ORS 215.416(8)(a) by applying that criterion to an application. (3) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a “youth activity center,” but where the local code does not define “youth activity center” or use that phrase elsewhere, a county violates the codification requirement at ORS 215.416(8)(a) by applying a list of factors set out in a prior quasi-judicial decision to assist in determining whether a specific use is a “youth activity center.” (4) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a “youth activity center,” but where the local code does not define “youth activity center” or use that phrase elsewhere, a county violates the goal-post rule at ORS 215.427(3)(a) by applying a list of factors set out in a prior quasi-judicial decision to assist in determining whether a specific use is a “youth activity center” where that quasi-judicial decision was not issued until after the application was submitted. (5) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a “youth activity center,” but where the local code does not define “youth activity center” or use that phrase elsewhere, a governing body’s interpretation of that phrase to mean any place where youth activities occur—even if that place was not “built, constructed, installed, or established” to serve or facilitate “youth activities,” and even where other local code provisions using the term “center” support a different interpretation—is inconsistent with the provision’s text and context.
Area(s) of Law:- Land Use
Currie v. Douglas County
(1) Where a local code provision requires that conditional uses be compatible with “existing adjacent permissible uses,” and where that provision requires the local government to identify and describe adjacent uses, maps and photographs identifying adjacent uses by location, ownership, and character of use are sufficient to identify adjacent uses, and expert reports based on onsite testing, which conclude that adjacent residential uses will not be adversely impacted, are adequate to describe adjacent residential uses. However, relying on the fact that adjacent residential uses are more sensitive and less buffered than adjacent grazing uses, and therefore using the residential uses as a proxy for the grazing uses, is not adequate to describe the grazing uses without explaining the manner in which the grazing operation is run—for example, whether it is seasonal or includes accessory activities such as breeding or calving. (2) A county’s findings of compliance with the farm impacts test at ORS 215.296(1) are not based on substantial evidence where the county identifies grazing as the only surrounding farm or forest use but does not verify that the grazing operation is in fact limited to grazing, without other uses such as breeding, or explain why surrounding uses do not involve forest practices even though timber is occasionally cut on the grazing property and other surrounding properties are held as timber investments or are government-owned timber lands.
Area(s) of Law:- Land Use
Anderson v. Yamhill County
(1) Where a local code provision requires that site design review be based on “[c]haracteristics of adjoining and surrounding uses,” where lands adjoining and surrounding the subject property are zoned for farm uses, and where the purpose of those zoning districts and the comprehensive plan is to support farm use and to “[c]onserve . . . farmland for the production of crops and livestock,” the local government does not err by characterizing the uses on adjoining and surrounding lands simply as farm uses, even where they contain farm dwellings. (2) Where a local code provision requires that site design review be based on “[c]omments and/or recommendations of adjacent and vicinity property owners whose interests may be affected by the proposed use,” the local government does not need to specifically reference every comment received in the decision. (3) Where local code provisions require that site design review be based on “[p]rovision for adequate noise and/or visual buffering from noncompatible uses” and “[c]omments and/or recommendations of adjacent and vicinity property owners whose interests may be affected by the proposed use,” arguments that an opponent provided unrefuted evidence of noise and odor impact from the type of operation being proposed provide no basis for reversal or remand where that evidence relates to activity conducted by the prior owner of the subject property and a different operation, where the local government relied on an expert report concluding that the applicant’s projected noise levels and proposed odor control system comply with state requirements, and where the county imposed conditions requiring further noise and odor control measures.
Area(s) of Law:- Land Use
Oregon Coast Alliance v. Tillamook County
(1) Where a local code provision allows “public utility facilities, including substations and transmission lines,” in a particular zone, the local government does not err by concluding that a utility facility is “public” so long as it is necessary for the public health, safety, and welfare, even if it is not publicly owned; that a utility facility benefits the public health, safety, and welfare by increasing the overall capacity and redundancy within the larger utility system; and that a utility facility is “public” even if it benefits the public generally and not just residents of the local community. (2) Goal 11 neither prevents the interconnection of communication facilities and services that serve both urban and rural areas nor limits the use of communication facilities and services to the needs of the rural area in which they are located. (3) Where a local code provision provides that a use not listed in a particular zone may be permitted in that zone if it is “of the same general character, or has similar impacts on nearby properties, as do other uses permitted in the zone,” the local government does not err by concluding that a particular use satisfies that criterion even if it has lesser negative impacts than permitted uses. (4) Where a local code provision provides that conditional uses may “not alter the character of the surrounding area in a manner which substantially limits, impairs or prevents the use of surrounding properties for the permitted uses listed in the underlying zone,” the local government does not err by failing to separately determine whether a use would “limit,” “impair,” or “prevent” surrounding uses if it concludes that the use will not “alter” the character of the surrounding area at all.
Area(s) of Law:- Land Use
Friends of Douglas County v. Douglas County
Where a ranch leases the subject property and adjacent properties for grazing, and where the adjacent properties are in capability classes I-IV/I-VI, the subject property is both within and adjacent to a “farm unit,” and is therefore “agricultural land” under OAR 660-033-0020(1)(b), even where the lease is not in writing, the owner of the subject property receives “de minimis” compensation from the ranch, the ranch does not object to an application to amend the subject property’s comprehensive plan designation and rezone the subject property for residential uses, and the subject property adds “no significant economic value to grazing operations on the adjacent properties.”
Area(s) of Law:- Land Use
September 1 summary
Armstrong v. Jackson County
Where a local government denies an application on multiple grounds, LUBA will affirm the decision where the petitioner does not challenge at least one of those grounds.
Area(s) of Law:- Land Use
October 3 summaries
Landwatch Lane County v. Lane County
(1) Where a property was created by an “illegal partition,” and where that property is later transferred to the owners of contiguous property, a county’s reliance on an uncodified, “fact-dependent,” “longstanding county policy” to conclude that that transfer constituted a “de facto property line adjustment,” eliminating the illegally partitioned property as a separate unit of land, violates the codification requirement at ORS 215.416(8)(a). (2) Even where a transfer of property met the definition of a property line adjustment under ORS 92.010(11) (1999), such transfer did not effectuate a property line adjustment where the deed did not contain the information required by ORS 92.190(4) (1999).
Area(s) of Law:- Land Use
1000 Friends of Oregon v. Clackamas County
(1) Where an applicant for a conditional use permit to host events as a home occupation on land zoned exclusive farm use plans to be on-site during events to assist with general coordination, parking, and other activities, and where conditions of approval make the applicant responsible for operational matters such as maintaining the event calendar to comply with limits on the number of events as well as monitoring noise and sign removal, substantial evidence exists to support the conclusion that the applicant will “operate[]” the home occupation under ORS 215.448(1)(a), even where they plan to have no full-time employees and to allow customers to hire their own contractors as necessary. (2) Where an applicant for a conditional use permit to host events as a home occupation on land zoned exclusive farm use explains how events can be conducted with no more than 5 employees on site at one time by scheduling activities, preparing food off site, utilizing buffet style service, and planning and making arrangements in advance, and where a condition of approval limits the home occupation to no more than 5 employees on site, substantial evidence exists to support the conclusion that the applicant will “employ on site no more than five full-time or part-time persons” under ORS 215.448(1)(b), even given the complex planning and implementation that a 300-guest wedding entails. (3) Where an applicant for a conditional use permit to host events as a home occupation on land zoned exclusive farm use plans to renovate two existing barns by adding a dance floor, sound proofing, and a catering preparation area to one barn, and adding restrooms and “Brides and Grooms rooms” and eliminating horse stalls in the other barn, and where the applicant plans to construct a new building containing restrooms with septic system capacity to serve 300 people per event, such home occupation violates the requirement at ORS 215.448(3) that counties may not “permit construction of any structure that would not otherwise be allowed in the zone.” (4) Under ORS 197.763(1), raising concerns about traffic safety impacts is not sufficient to preserve an argument that the guests-per-vehicle assumption on which the local government relied is not supported by substantial evidence, where opponents did not specifically challenge that assumption in the applicant’s traffic impact analysis below.
Area(s) of Law:- Land Use
Columbia Pacific Building Trades Council v. City of Portland
(1) Where a comprehensive plan provision requires a local government to “[l]imit development in or near areas prone to natural hazards,” a local government’s conclusion that a prohibition on establishing new fossil fuel terminals (FFTs) and expanding existing FFTs is consistent with that provision is supported by an adequate factual base where most of the local government’s industrial zoning is in areas with high levels of liquefaction susceptibility and where the prior ability to expand storage capacity had not yielded many seismic upgrades. (2) Where a comprehensive plan provision requires a local government to “[l]imit fossil fuels distribution and storage facilities to those necessary to serve the regional market,” a local government’s conclusion that a prohibition on establishing new fossil fuel terminals (FFTs) and expanding existing FFTs is consistent with that provision is not supported by an adequate factual base where state, regional, and local policies exist to shift from petroleum to electricity and natural gas, where natural gas falls under the city’s definition of fossil fuels, and where the local government does not explain how the natural gas needed to meet any increased demand will be available if fossil fuel storage may not be increased. (3) Although balancing competing comprehensive plan policies is only permissible in the quasi-judicial context when the standards themselves are incompatible, local governments have more flexibility to balance policies in the legislative context. (4) Where comprehensive plan provisions require a local government to “[m]aintain and strengthen [its] comparative economic advantages including access to a high-quality workforce” and “[m]aintain, protect, and enhance the public and private multimodal transportation investments,” the local government errs in concluding that a prohibition on establishing new fossil fuel terminals (FFTs) and expanding existing FFTs is consistent with those provisions because it applies to only one sector, without addressing the relationship between FFTs and other businesses in the area.
Area(s) of Law:- Land Use