Caleb Huegel

Land Use Board of Appeals (151 summaries)

Living Strong, LLC v. City of Eugene

Area(s) of Law:
  • Land Use

Kenney v. Tillamook County

Area(s) of Law:
  • Land Use

McDougal Brothers, Inc. v. Lane County

Area(s) of Law:
  • Land Use

McLaughlin v. Douglas County

Area(s) of Law:
  • Land Use

Joe Ben, LLC v. Jackson County

Area(s) of Law:
  • Land Use

Riverbend Landfill Co. v. Yamhill County

Area(s) of Law:
  • Land Use

Thrive Hood River v. Hood River County

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

Area(s) of Law:
  • Land Use

Central Oregon Landwatch v. Deschutes County

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

Area(s) of Law:
  • Land Use

Nieto v. City of Talent

Area(s) of Law:
  • Land Use

Oregon Coast Alliance v. City of Wheeler

Area(s) of Law:
  • Land Use

Scott v. Josephine County

Area(s) of Law:
  • Land Use

Chapman Point Homeowners Association v. City of Cannon Beach

Area(s) of Law:
  • Land Use

Coates v. Columbia County

Area(s) of Law:
  • Land Use

Legacy Development Group, Inc. v. City of The Dalles

Area(s) of Law:
  • Land Use

Gansen v. Lane County

Area(s) of Law:
  • Land Use

Citizens for Renewables v. Coos County

Area(s) of Law:
  • Land Use

Kopacek v. City of Garibaldi

Area(s) of Law:
  • Land Use

Kine v. Deschutes County

Area(s) of Law:
  • Land Use

Diephuis v. City of Beaverton

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

Area(s) of Law:
  • Land Use

Suess v. City of Port Orford

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

Area(s) of Law:
  • Land Use

Hollander Hospitality v. City of Astoria

Area(s) of Law:
  • Land Use

Kohler v. Jackson County

Area(s) of Law:
  • Land Use

Russell v. Lane County

Area(s) of Law:
  • Land Use

Citizens for Renewables v. City of North Bend

Area(s) of Law:
  • Land Use

Schrepel v. Yamhill County

Area(s) of Law:
  • Land Use

Oregon Shores Conservation Coalition v. Coos County

Area(s) of Law:
  • Land Use

Schaefer v. Oregon Aviation Board

Area(s) of Law:
  • Land Use

Jacobus v. Klamath County

Area(s) of Law:
  • Land Use

South Suburban Sanitary District v. Klamath County

Area(s) of Law:
  • Land Use

Home Builders Association of Lane County v. City of Eugene

Area(s) of Law:
  • Land Use

Matthews v. Lane County

Area(s) of Law:
  • Land Use

Royal Blue Organics v. City of Springfield

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Central Oregon Landwatch v. Deschutes County

Under RLUIPA, a county may not exclude churches from a Wildlife Area overlay zone while allowing nonreligious assemblies and institutions.

Area(s) of Law:
  • Land Use

Hood River Valley Residents’ Committee v. Hood River County

(1) LUBA must accept a local government’s interpretation of its land development code that is plausible and not inconsistent with the express language or purposes of or the policies underpinning the provisions at issue, (2) LUBA may not consider arguments raised for the first time on appeal, and (3) assignments of error directed at decisions other than the decision on appeal do not provide a basis for reversal or remand.

Area(s) of Law:
  • Land Use

Watts v. Metro

For purposes of ORS 197.015(10)(a), important considerations for determining the finality of a decision include whether it is an exercise of the local government’s land use planning authority and the extent to which it is binding on the local government and others.

Area(s) of Law:
  • Land Use

Warren v. Washington County

ORS 197.307(4) prohibits local governments from applying standards, conditions, and procedures that are not clear and objective to proposals for housing development, without regard to whether the property is “buildable land.”

Area(s) of Law:
  • Land Use

Stafford Investments LP v. Clackamas County

Under CCCP Policy 4.LL.3, a finding that a property has “an historical commitment to commercial uses” for purposes of allowing an RC designation requires that commercial uses have constrained the scope of uses on the property such that going forward only commercial uses are feasible, which excludes consideration of the temporary and incidental commercial uses.

Area(s) of Law:
  • Municipal Law

Thomas v. Wasco County

Under ORS 197.015(10)(a), while a county Notification of Non-violation may “concern” land use regulation, it does not necessarily constitute an “application” of land use regulation giving LUBA jurisdiction over its appeal.

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

While the unlawfulness of a parent parcel does not taint a parcel that was subsequently created lawfully, it is unclear whether a remainder parcel of an approved subdivision can be considered to have received county approval for purposes of legal verification.

Area(s) of Law:
  • Land Use

Lundeen v. City of Waldport

While the feasibility of a proposed planned development must be shown at the preliminary plan stage—requiring substantial evidence that solutions to certain problems posed by the project are possible, likely, and reasonably certain to succeed—detailed technical matters involved in selecting particular solutions and requiring expert evaluation may be deferred to the final plan stage for administrative review and approval.

Area(s) of Law:
  • Land Use

Rogue Advocates v. Josephine County

Where a county does not address or adopt findings in response to an argument below concerning the interpretation of its own land use laws, it is inappropriate for LUBA to interpret the relevant provisions of the county’s land use laws in the first instance before giving the county an opportunity to address the issue itself on remand.

Area(s) of Law:
  • Land Use

Friends of Douglas County v. Douglas County

A decision approving a boundary line adjustment to a parcel under applicable standards does not “collaterally attack” the decisions that created the parcel under different standards, even if the adjusted parcel would not comply with those different standards.

Area(s) of Law:
  • Land Use

Landwatch Lane County v. Lane County

(1) A county ordinance identifying a parcel designated for forest uses in its Statewide Planning Goal 5 inventory of significant mineral and aggregate sites is sufficient evidence to support a county’s conclusion that an inconsistency exists between an ordinance and a plan or zoning map for purposes of making conformity determination amendments. (2) LUBA generally does not consider arguments in footnotes that set out different legal theories than those presented in the assignments of error themselves.

Area(s) of Law:
  • Land Use

McLoughlin Neighborhood Association v. City of Oregon City

(1) In the absence of specific requirements from LUBA or procedures adopted by the local governments themselves, local governments have discretion to determine the preferred method of resolving decisions on remand. (2) A local government’s adoption of a historic resource regulatory scheme is not necessarily an implied waiver of statutory rights to refuse consent to historic designations of local government-owned property. (3) A city manager’s authority to exercise “supervision over all city property” is sufficiently broad to include the authority to refuse to consent to historic designation of city-owned property. (4) ORS 197.772(1) authorizes both public and private property owners to refuse to consent to historic designation of their property.

Area(s) of Law:
  • Land Use

Martin v. City of Tigard

City council interpretations of their own land use laws are subject to a highly deferential standard of review by LUBA, under which it must affirm a governing body’s interpretation of local land use legislation unless that interpretation is implausible.

Area(s) of Law:
  • Land Use

Feetham v. Jackson County

In determining the scope or extent of a nonconforming use right, the relevant legal question is the extent of the activity that is actually occurring on the date when the use becomes nonconforming, with an allowance for changes in the volume or intensity of the use if they are attributable to growth or fluctuations in business conditions.

Area(s) of Law:
  • Land Use

Cossins v. Josephine County

Under ORS 215.503, counties must provide property owners with advance, individual, written notice by mail of the first hearing on an ordinance that proposes to rezone their property. Such notice must include specific information and be sent within a specified time frame. Failure to provide sufficient notice may prejudice property owners’ substantial rights even if they participated in one or more of the hearings held below.

Area(s) of Law:
  • Land Use

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