Lake Oswego Preservation Society v. City of Lake Oswego

Under ORS 197.772(3), a request to remove property from the list of historic landmarks may only be initiated by the property owner at the time of designation, not by a successor in interest.

In 1990, the Carman house was designated a historic landmark. In June 2013, the current owner, The Mary Caldwell Wilmot Trust (Wilmot), sought to have this designation removed. On January 7, 2014, the city council approved the request under ORS 197.772(3), concluding that a successor in interest can request this removal, and that the designation had been “imposed” on Wilmot. Lake Oswego Preservation Society (LOPS) appealed to LUBA, arguing that the city council failed to follow procedure when they allowed Wilmot to withdraw the request under Lake Oswego Code 50.06.009.5.d and continue under ORS 197.772(3). The Board disagreed, reasoning that two letters sent in succession, one requesting review under ORS and the second withdrawing the request under LOC, did not have the effect of withdrawing the application completely and the city council was correct to continue as though it were the original application. LOPS next argued that only the property owner at the time of designation, not successors, can seek removal under ORS 197.772(3). LUBA found that the context of the statute would lead to the conclusion that the current owner could seek removal, but the legislative history suggested limiting this procedure to the property owner at the time of designation. The Board held that the latter, narrower exception to the Goal 5 process was the appropriate interpretation, and the city erred by approving removal. LUBA then analyzed the argument against the city council’s finding that the designation was “imposed.” The Board held that the original owner had not withdrawn his objections at the time of designation, and thus the designation was “imposed.” Because the applicant had originally sought removal under LOC, LUBA remanded to the city council to determine whether Wilmot could revive that request. REMANDED.