Land Use Board of Appeals (54 summaries)
Botts Marsh LLC v. City of Wheeler
During the design review stage of an application, a local government’s interpretation of its design criteria must be shown to be supported by the text, context, and purpose of the standards used in the ordinance.
Area(s) of Law:- Land Use
Jacobus v. Klamath County
Under OAR 661-010-0015(3)(f)(B), a party filing a notice of intent to appeal (NITA) with LUBA must include the name of the local government’s counsel.
Area(s) of Law:- Land Use
Friends of Marion County v. Marion County
When an applicant has entered into a contract to raise trees to maturity as farm products, and has accepted payment for that contract along with its contractual duties to raise and deliver the trees to the buyer, the applicants may be considered as having earned their income from the sale of farm products under the criteria of OAR 660-033-0135(4), even though the trees have not yet been harvested and delivered to the buyer.
Area(s) of Law:- Land Use
1000 Friends of Oregon v. City of Hillsboro
When a local government prepares an economic opportunity analysis (EOA) as an update to its comprehensive plan under OAR 660-009-0015, the local government must consider vacant land as well as developed land that may be developed during the EOA’s planning period when evaluating whether there is enough land available to meet the local government’s forecasted economic development.
Area(s) of Law:- Land Use
Thrive Hood River v. Hood River County
Whether a use, such as a home occupation, may be considered “incidental and subordinate” to the predominant existing use depends on “any relevant circumstances, including the nature, intensity, and economic value of the respective uses,” including frequency, “but frequency is only one factor.” Friends of Yamhill County v. Yamhill County, 31 Or. App. 726, 739 (2020).
Area(s) of Law:- Land Use
Oregon Coast Alliance v. Curry County
While LUBA cannot give effect to a severance clause included in a local government ordinance, the inclusion of a severance clause is not sufficient, on its own, to provide a basis for LUBA's remand of the ordinance.
Area(s) of Law:- Land Use
Ferguson Creek Investment v. Lane County
The continuation of a lawful nonconforming use on land zoned exclusive farm use (EFU) under ORS 215.130 is not inconsistent with ORS 215.213(1)(q) or ORS 215.219 allowing the “alteration, restoration or replacement of a lawfully established dwelling” on EFU-zoned land because a “continued” use and an “alteration, restoration or replacement” are two different activities which are not mutually exclusive.
Area(s) of Law:- Land Use
Rogue Advocates v. City of Ashland
Where the express language of a local government’s code states that an application must satisfy certain criteria to be approved, the local government must either find the application fully satisfies those criteria, or the local government must show how those criteria will be satisfied later in the development process in order to approve the application.
Area(s) of Law:- Land Use
Central Oregon Landwatch v. Deschutes County
Where a post-acknowledgement plan amendment (PAPA) proposes a zone change on property that contains an identified Goal 5 resource, and the new zone allows for development that was not previously considered in the original economic, social, environmental, and energy (ESEE) analysis, a local government errs in concluding that the original ESEE had already considered all development possible and a new ESEE is not necessary.
Area(s) of Law:- Land Use
Shaw v. Jackson County
Where an application for a short-term rental is shown to be an accessory use of a primary residential use, and the local government does not forbid short-term rentals as a “home occupation,” LUBA cannot say as a matter of law that the local government erred in approving a short-term rental as a home occupation.
Area(s) of Law:- Land Use
Cerelli v. City of Manzanita
Where a local government does not incorporate portions of their comprehensive plan into their land use provisions, under ORS 197.195(1), in a limited land use decision, an applicant’s failure to demonstrate compatibility with the comprehensive plan cannot be used as a reason to deny their application.
Area(s) of Law:- Land Use
Old Hazeldell Quarry v. Lane County
Under OAR 660-023-0180, if, after thoroughly evaluating the economic, social, environmental, energy (ESEE) factors, a local government finds the factors are evenly split for and against allowing a proposed mine, LUBA will uphold the local government’s “highly subjective” decision to approve or deny the application if the findings adequately explain that decision.
Area(s) of Law:- Land Use
1000 Friends of Oregon v. Marion County
While hosting events may be a permissible home occupation on EFU-zoned property under ORS 215.448 and ORS 215.283(2)(i), ORS 215.448(1)(b) limits the number of employees allowed on the property at any time to five. This five-employee limit is an “indirect limit on the size and scope of the home occupation activities” allowed in an EFU zone.
Area(s) of Law:- Land Use
Graser-Lindsey v. Clackamas County
Under OAR 660-023-0200(9)(b), a local government may remove a property from its list of protected historical landmarks if a property deteriorates to the point that it loses the qualities which had led it to be protected, regardless of whether that loss is due to natural causes, neglect, or deliberate damage.
Area(s) of Law:- Land Use
Johnson v. Lane County
Under the policy of finality expressed in ORS 197.805, a local government may not adopt provisions that allow it to revoke final decisions indefinitely, even when it later discovers it made a mistake in its original decision due to fraud by the applicant.
Area(s) of Law:- Land Use
Claus v. City of Sherwood
A local government does not err in concluding ORS 92.040 applies to all local government laws rather than only those pertaining to the implementation of a comprehensive plan.
Area(s) of Law:- Land Use
Community Participation Organization 4M v. City of Tigard
Under the Nollan and Dolan “rough proportionality” test, where a local government’s code requires a through-street for a residential development but the development will likely generate very few additional vehicle trips in the area and the cost of constructing such a road would be “devastating” for the project, the local government does not err in concluding the required street is not roughly proportional. In that instance, the local government is not forced to require the street be built and pay just compensation, and it may a) decline to apply the street requirement at issue to the application, b) consider only the project as proposed and not any alternatives, and c) find that designating the required street as “private” instead of “public” is still an exaction because the public will be required to use the street regardless of its designation.
Area(s) of Law:- Land Use
Hinkle v. City of Bend
If an issue is brought up as “general opposition” to a proposal in the proceedings before the local government, and on appeal to LUBA the issue is raised while challenging the proposed action’s compliance with specific criteria or the operative language of a provision for the first time, LUBA will find the issue has not been raised with sufficient specificity and is waived under the “raise it or waive it” rule of ORS 197.835(3).
Area(s) of Law:- Land Use
Oregon Coast Alliance v. Clatsop County
Where, on remand from LUBA, a local government is instructed to interpret a subsection of its code, it is not a procedural error for the local government to also interpret the surrounding provisions without opening the record. Where a term is sufficiently limited by a local government’s interpretation of adjacent or related terms that its interpretation can be implied, that interpretation is adequate for review. LUBA will evaluate a local government’s interpretations of terms within its own code under the deferential Siporen standard.
Area(s) of Law:- Land Use
Woodburn Petroleum v. City of Woodburn
Where an applicant for a conditional use permit consolidates their submission with other land use applications for the subject property and treats all applications as one project, a local government does not err in applying conditional use permit criteria to the other applications or in denying the other applications if the conditional use permit is denied.
Area(s) of Law:- Land Use
Gould v. Deschutes County
If, on a land use compatibility statement (LUCS) form, a local government summarizes the status of multiple permit decisions rather than listing each decision and its specific approval status, or fails to mention potential future changes to an approved master plan, LUBA will conclude the local government’s decision as to the LUCS may still be excepted from its review under ORS 197.015(10)(b)(H).
Area(s) of Law:- Land Use
Vanderburg v. City of Albany
On appeal to LUBA, a petitioner must establish that a particular issue was raised in the proceedings below. If a petitioner fails to do so, LUBA will hold that the issue has been waived or that there is insufficient information for LUBA to adequately review the local government’s decision.
Area(s) of Law:- Land Use
Botts Marsh, LLC v. City of Wheeler
Generally, LUBA will affirm a local government’s interpretation of its own provisions as long as those interpretations are “plausible.” Siporen v. City of Medford, 349 Or. 247, 259 (2010). If LUBA remands local provisions for interpretation and the local government makes new interpretations, the petitioner bears the burden of establishing that those interpretations are so different as to constitute an impermissible standard change under ORS 227.178(3)(a). However, in a limited land use decision, LUBA will find the local government erred and remand its decision if the local government adopts new interpretations in their final decision denying an application without allowing the applicant a meaningful opportunity to address those new interpretations, however plausible.
Area(s) of Law:- Land Use
Friends of Yamhill County v. Yamhill County
Under ORS 215, LUBA will find the operation of a bed and breakfast is allowed as a “home occupation” permitted in the “dwelling house” on a property zoned exclusive farm use.
Area(s) of Law:- Land Use
Haj v. City of Portland
Where a local government’s decision falls under the exception to LUBA’s jurisdiction under ORS 197.015(10)(b)(D), the “significant impacts” test, which may give LUBA jurisdiction over decisions that do not qualify as a “land use decision” but create “an actual qualitatively or quantitatively significant impact” on surrounding land uses, will not grant LUBA jurisdiction over the appeal. Fire Mountain Gems and Beads v. City of Grants Pass, 57 Or. LUBA 597, 606-07 (2008) (citing Oregonians in Action v. LCDC, 103 Or. App. 35, 38, (1990)).
Area(s) of Law:- Land Use
Ericsson v. Lane County
An application under section 11 of Measure 49 is not a permit within the meaning of ORS 215.402(4), and a local government does not err in refusing to issue a refund to a Measure 49 applicant for approval of an application outside the final action time requirement of ORS 215.427(8).
Area(s) of Law:- Land Use
Backer v. City of Salem
As part of a limited land use decision, LUBA will affirm a local government’s interpretation of its local codes provided their decision includes the standards and criteria used as required under ORS 197.195(4) and is supported by substantial evidence such that a reasonable person viewing the record as a whole could reach the conclusion the decisionmaker did.
Area(s) of Law:- Land Use
Bend Research v. Deschutes County
When a private utility company applies for a LUCS merely to extend its connections to other customers without altering its treatment facility, and such extensions are allowed under the local code without restriction, LUBA will conclude it lacks jurisdiction under ORS 197.015(10)(b)(H).
Area(s) of Law:- Land Use
Delmonico v. Washington County
1) Where an assignment of error is raised solely in the footnotes of a petition for review, LUBA will not address it. 2) Where an on-site delineation of a significant natural resource (SNR) is determined to be different from the general location on the SNR inventory map, LUBA will hold that a local government does not err in concluding the on-site delineation is the proper location of the resource. 3) Where a development activity is excepted from a restriction under local ordinance, LUBA will hold that a condition on the approval of the development activity need not also be separately excepted.
Area(s) of Law:- Land Use
Botts Marsh, LLC v. City of Wheeler
Where a local government denies an application for a conditional use permit after evidentiary review, and where evidence offered by the applicant would have required the local government to infer alleged facts, LUBA will hold on appeal that the applicant’s evidence was not such that no reasonable trier of fact could not have believed it and, accordingly, there are no grounds for reversal.
Area(s) of Law:- Land Use
Marick v. City of Lake Oswego
Under ORS 197.015(10)(b)(B), a local government’s actions that only implement or rely on a previous land use decision and do not apply land use standards are outside LUBA’s jurisdiction.
Area(s) of Law:- Land Use
Dooley v. Wasco County
When approving an irrevocable exception to a Statewide Planning Goal, a local government must fully evaluate the subject property’s relationship to uses of all adjacent properties to determine if the subject property is irrevocably committed to a non-resource use. ORS 197.732; OAR 660-004-0028.
Area(s) of Law:- Land Use
1000 Friends of Oregon v. Columbia County
When a term for a transportation use that does not require an exception to a Statewide Planning Goal is undefined in the statute, LUBA will look to the plain meaning of the words and available state agency definitions to determine whether the proposed uses are consistent with that definition or exceed it and require an exception.
Area(s) of Law:- Land Use
1st John 2:17, LLC v. City of Boardman
LUBA will grant deference to a local government’s interpretation of an ambiguous land use regulation unless its interpretation is inconsistent with the express language, purpose, or underlying policy of the provisions. ORS 197.829(1). Where the provisions in question do not include express language contrary to a local government’s interpretation, but there is nevertheless a “strong implication” that a different interpretation is required, LUBA will not grant deference.
Area(s) of Law:- Land Use
Smith v. Douglas County
Absent a local ordinance specifying otherwise, LUBA will find a county official who receives a misfiled appeal of a land use decision has the authority to deny the application for improper filing.
Area(s) of Law:- Land Use
Husk v. City of Bend
Where applicable, a local government must consider the implementation of ORS 197.758, the “middle housing statute,” when evaluating code compliance of an applicant’s proposed subdivision of single-family homes.
Area(s) of Law:- Land Use
1625 Sherman Ave. LLC v. City of North Bend
Where a local government’s findings merely respond to a petitioner’s arguments, LUBA will not find, without more, sufficient grounds for concluding that the local government exercised policy or legal judgment in reaching its decision.
Area(s) of Law:- Land Use
Oregon Coast Alliance v. Tillamook County
Under OAR 660-004-0022(1), a local government it may approve a “reasons” exception upon demonstration that the subject site has specific, unique considerations that require the exception to meet a need under Goals 3 through 19.
Area(s) of Law:- Land Use
Gould v. Deschutes County
Under ORS 197.797(1), an issue is preserved for review by LUBA if it has been “raised and accompanied by statements or evidence sufficient to afford [LUBA] and the parties an adequate opportunity to respond to each issue.” A petition for review to LUBA must demonstrate that the issue “was preserved during the proceedings below,” OAR 661-010-0030(4)(d), and LUBA will not search the record or large page ranges to find whether an issue was preserved. H2D2 Properties, LLC v. Deschutes County, __ Or. LUBA __, (LUBA No. 2019-066, Dec. 2019) (slip op at 7-9). However, because the purpose of ORS 197.797(1) is to provide the parties and the decisionmaker “an adequate opportunity to respond to each issue,” LUBA will not deny an assignment of error due to an insufficient preservation statement a) if the reply brief provides more focused citations to where an issue was raised, b) “where it is evident from the challenged decision itself that the issues raised” were “central” to the proceedings below, and c) if “the local government’s decision responds to those issues.” Nehmzow v. Deschutes County, __ Or. LUBA __, __ (LUBA No. 2019-110, Aug. 10, 2020) (slip op at 14-15).
Area(s) of Law:- Land Use
Nelson v. City of Hillsboro
Under ORS 174.010, errors in figures used for city planning are not within LUBA’s authority to correct. An assignment of error that collaterally attacks a city ordinance implicated in the decision on appeal provides no basis for LUBA to reverse or remand. Turner v. Jackson County, 62 Or. LUBA 199, 201 (2010), aff’d, 249 P.3d 564 (2011); Butte Conservancy v. City of Gresham, 47 Or. LUBA 282, 296, aff’d, 100 P.3d 218 (2004).
Area(s) of Law:- Land Use
Monroe v. City of Corvallis
Under ORS 197.015(10)(b)(H),“a proposed state agency action . . . is compatible with the acknowledged comprehensive plan and land use regulations implementing the plan,” and excluded from LUBA’s jurisdiction, “if: (i) [t]he local government has already made a land use decision authorizing a use or activity that encompasses the proposed state agency action; . . . or (iii) [t]he use or activity that would be authorized . . . by the proposed state agency action requires a future land use review under the acknowledged comprehensive plan and land use regulations implementing the plan[.]”
Area(s) of Law:- Land Use
Phillips v. City of Corvallis
Under ORS 197.825(2)(a), LUBA’s jurisdiction is limited to “those cases in which petitioner has exhausted all remedies available by right before petitioning the board for review[.]” However, under ORS 197.830(3), “[i]f a local government makes a land use decision without providing a hearing . . . a person adversely affected by the decision may appeal the decision to the board[.]” These appeals are not subject to the exhaustion requirement under ORS 197.825(2)(a) unless the local government voluntarily grants a local appeal, then the local remedy must be exhausted before appealing to LUBA. Comrie v. City of Pendleton, 45 Or. LUBA 758, 772 (2003).
Area(s) of Law:- Land Use
Gould v. Deschutes County
A state agency permit is a means of showing compliance with a water supply requirement, unless it can be demonstrated that the permit cannot be obtained “as a matter of law” Bouman v. Jackson County, 23 Or. LUBA 628, 646-47 (1992). Where a permit has expired and its renewal is subject to pending litigation, LUBA will hold that it is not unattainable as a matter of law.
Area(s) of Law:- Land Use
Sikora v. Lane County
An applicant carries the burden of proof to establish that applicable criteria are satisfied, regardless of whether the criteria require the applicant to prove a positive or negative. York v. Clackamas County, __ Or. LUBA __, __ (LUBA No. 2019-081, Jan. 9, 2020) (slip op at 12).
Area(s) of Law:- Land Use
Old Hazeldell Quarry v. Lane County
Where an applicant seeks to amend a local government’s comprehensive plan and zoning ordinance to allow for mining, a local government denying the application need not adopt findings to inform the applicant of the steps necessary to gain approval because the decision is subjective and requires the weighing of local interests.
Area(s) of Law:- Land Use
Schaefer v. Marion County
LUBA will interpret OAR 660-004-0020(2)(b) to include land available for lease unless the record demonstrates that the property owner is "categorically unwilling" to lease the land. Columbia Riverkeeper v. Columbia County, 70 Or LUBA 171, 195, aff’d, 267 Or App 637 (2014). Findings must address and respond to specific issues relevant to compliance with applicable approval standards that were raised in the proceedings below. Norvell v. Portland Area LGBC, 43 Or App 849, 853 (1979). Statewide planning goals are the foundation of Oregon’s land use system, exceptions are exceptional, 1000 Friends of Oregon v. LCDC, 69 Or App 717, 731 (1984), and a reasons exception is the most limited type. Riverkeeper I, 70 Or LUBA at 181-82.
Area(s) of Law:- Land Use
Christian Futures v. Lane County
Under ORS 92.010(3)(a), a lawfully established unit of land is “(i) [a] lot or parcel created by filing a final plat for subdivision or partition; or (ii) [a]nother unit of land created[] (aa) [i]n compliance with all applicable planning, zoning and subdivision or partition ordinances and regulations; or (bb) [b]y deed or land sales contract, if there were no applicable planning, zoning or subdivision or partition ordinances or regulations.”
Area(s) of Law:- Land Use
Kretzer v. City of Shady Cove
Under ORS 197.835(9)(a)(C), LUBA will remand a local government decision if it is “not supported by substantial evidence in the whole record.” Substantial evidence is evidence that a reasonable person would rely upon to reach a decision. Dodd v. Hood River County, 855 P.2d 608 (1993).
Area(s) of Law:- Land Use
Gould v. Deschutes County
Substantial evidence is evidence that a reasonable person would rely upon to reach a decision. Dodd v. Hood River County, 855 P.2d 608 (Or. 1993). When reviewing the evidence, LUBA cannot substitute its judgement for that of the local decision-maker but must determine whether a reasonable local decision-maker could reach the decision it did based on the evidence presented. Younger v. City of Portland, 752 P.2d 262 (Or. 1988).
Area(s) of Law:- Land Use
Botts Marsh, LLC v. City of Wheeler
Under ORS 197.195(4), “[a]pproval or denial of a limited land use decision shall be based upon and accompanied by a brief statement that explains the criteria and standards considered relevant to the decision, states the facts relied upon in rendering the decision and explains the justification for the decision based on the criteria, standards and facts set forth.” If the local government finds the application does not comply with the applicable standards, their “findings must be sufficient to inform the applicant either what steps are necessary to obtain approval or that it is unlikely that the application will be approved. . . . The findings must provide a coherent explanation for why the city believes the proposal does not comply with the criteria.” Bridge Street Partners v. City of Lafayette, 56 Or LUBA 387, 394 (2008).
Area(s) of Law:- Land Use
Columbia Riverkeeper v. Columbia County
Under OAR 660-004-0020(2)(d), to be approved, a Goal 3 exception must make a showing that “[t]he proposed uses are compatible with other adjacent uses . . . ” and that “the proposed use is situated in such a manner as to be compatible with surrounding natural resources and resource management or production practices.”
Area(s) of Law:- Land Use
Tadei v. City of Astoria
Under OAR 660-010-0030(4), a petition for review must assign error and provide arguments for why a decision below must be reversed.
Area(s) of Law:- Land Use
Schaefer v. Oregon Aviation Board
Under ORS 197.850(9)(a), the court may reverse or remand LUBA’s decision if it finds the order is “unlawful in substance or procedure, but error in procedure is not cause for reversal or remand unless the court finds that substantial rights of the petitioner were prejudiced” by that error. In the event that the record is missing an item necessary for LUBA to perform its review function, remanding the decision is the appropriate remedy. Andrews v. City of Prineville, 28 Or LUBA 653, 661-62 (1995). When LUBA reverses or remands a land use decision, LUBA must “decide all issues presented to it” when “the findings, order and record are sufficient to allow review[.]” ORS 197.835(11)(a).
Area(s) of Law:- Land Use
Tadei v. City of Astoria
Under OAR 661-010-0030(4), a petition to LUBA must contain: (a) “the facts that establish petitioner’s standing;” (b) “a clear and concise statement of the facts in the following order[:] (A) The nature of the land use decision . . . and the relief sought by petitioner; (B) A brief summary of the arguments appearing under the assignments of error[;] (C) A summary of the material facts . . . in narrative form with citations to the record where the facts alleged can be found[;]” (c) a statement of “why the challenged decision is a land use decision . . . subject to [LUBA]’s jurisdiction;” (d) “each assignment of error[.]” “Although each of the . . . requirements [for the petition for review] is important, the requirement . . . that the petition for review include assignments of error, supported by argument, is particularly important.” Bjerk v. Deschutes County, 17 Or. LUBA 187, 194 (1988).
Area(s) of Law:- Land Use