McLoughlin Neighborhood Association v. City of Oregon City

Under OCMC 17.40.050(A), the Historic Review Board (HRB) has a duty to enquire into and make findings of fact and conclusions of law regarding the validity and effectiveness of a public official’s refusal to consent to the historical designation of public property. The HRB should adopt findings addressing threshold jurisdictional issues once they are raised before suspending its consideration of an application.

Petitioner, a neighborhood association, seeks to designate two city-owned structures as historic landmark. Petitioner appeals a letter to petitioner’s chairperson and a memorandum to the city’s Historic Review Board (HRB). In both documents the city manager takes the position that the city refuses to consent to the historic designations under ORS 197.772(1), which allows a property owner to refuse to consent to any form of historic property designation at any point during the designation process. As a result, the city’s HRB removed petitioner’s historic landmark designation application from the agenda of a scheduled public hearing. In LUBA No. 2017-054, petitioner appeals the HRB’s decision to take no further action on its application.

Under the second assignment of error, petitioner argues “[n]o hearing was held, the record was never opened, no motion was made, no findings were discussed or adopted, and no decision (written or otherwise) was made on the application as required by OCMC 17.040.050(A).”  Specifically, petitioner urges that this matter should be remanded to the HRB for a hearing and written decision even if LUBA finds that the city manager’s attempted refusal under ORS 197.722(1) may ultimately have been effective. Further, petitioner argues that the HRB had a duty to enquire into and make findings of fact and conclusions of law regarding the validity and effectiveness of the city manager’s decision.

LUBA generally agreed with this argument, because if either of petitioner’s arguments against the city manager’s refusal to consent (waiver of a city’s right to refuse to consent, and lack of city manager authority to refuse to consent) have merit, the HRB would be required to proceed with its consideration of petitioner’s application. As such, LUBA found that the HRB erred by simply suspending its consideration of petitioner’s application without adopting findings addressing petitioner’s arguments. REMANDED.