Oregon Land Use Board of Appeals

2020

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 0 summaries


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