Lake Oswego Preservation Society v. City of Lake Oswego

Under ORS 197.772(3), a successor in interest to property imposed with a historic designation may remove that designation, even if the particular owner was not the owner at the time of the designation. LUBA has jurisdiction to hear appeals regarding removal of historic designations.

Hanson, Trustee for the Wilmot Trust which owns the subject historic property, requested that the City of Lake Oswego remove its historic designation under ORS 197.772(3), and not under a land use application. The city council found Hanson was entitled, under the statute, to require the city to remove the historic designation from the subject property. The Lake Oswego Preservation Society appealed this decision to the Land Use Board of Appeals (LUBA), which reversed and remanded to the city council, finding that the city had erroneously interpreted the statute. Hanson sought judicial review of LUBA’s final order, arguing that the city’s decision was not a “land use decision” over which LUBA had jurisdiction, and that LUBA erroneously interpreted the statute. The Court held LUBA had jurisdiction to hear the appeal because the decision to remove a historic designation requires removal of the property from the municipal code, requiring amendment of the code, which makes the city’s decision a “land use decision.” The Court further held LUBA’s interpretation of the statute was erroneous; the legislative history revealed “the legislature intended to allow any property owner that had a local historic designation forced on their property to remove that designation,” even if the property owner did not own the property at the time of the designation. Reversed on petition; affirmed on cross-petition.