- Court: Oregon Land Use Board of Appeals
- Area(s) of Law: Land Use
- Date Filed: 05-11-2018
- Case #: 2017-129
- Judge(s)/Court Below: Opinion by Holstun
- Full Text Opinion
Petitioner appeals a decision of the city manager reaffirming a previous decision to refuse to consent to petitioner’s historic designation proposals for two city-owned structures. On appeal from the city’s previous decision to refuse consent, LUBA remanded the city’s decision in order for the city’s Historic Review Board (HRB) to answer a series of jurisdictional questions. On remand, and without opening the evidentiary record, the city commission concluded that it had not waived its right to refuse to consent to historic designation of city-owned property by creating and empowering the HRB, the city manager does have authority under local law to refuse such consent, and ORS 197.772(1) authorizes both public and private property owners to refuse such consent. Petitioners subsequently appealed.
On the first assignment of error, petitioner argues that the city commission erred by answering the jurisdictional questions. In response, the city argues that LUBA’s decision provides no indication or specific citation that would require the HRB to answer the jurisdictional questions instead of the city commission. LUBA agrees with the city, stating that there was no issue presented on appeal from the city’s previous decision to refuse consent as to which entity must answer the jurisdictional questions and, 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. The first assignment of error is denied.
On the second assignment of error, petitioner argues that their substantial rights were prejudiced when the city refused to open the evidentiary record following LUBA’s remand since resolution of the issue of whether the city waived its right to refuse consent is an inherently factual inquiry. In response, the city argues that petitioner failed to preserve this argument by not raising it below. LUBA agrees with the city. The waiver issue is not within LUBA’s scope of review and the second assignment of error is denied.
On the third assignment of error, petitioner argues that the city waived its right to refuse to consent to historic designations of city-owned property by creating and empowering the HRB, the city manager does not have authority to refuse such consent because the OCMC does not specifically list that power as one of the general powers of the city manager, and (3) ORS 197.772(1) does not authorize public property owners to refuse such consent because the regulatory context and legislative history require a narrow interpretation of the term “property owner.” In response, the city argues that there is no authority for the proposition that a local government’s adoption of a historic resource regulatory scheme such as the HRB results in an implied waiver of statutory rights to refuse consent to historic designations of city-owned property and (2) the city commission adopted findings that the city manager’s general authority to exercise “supervision over all city property” is sufficiently broad to include the authority to refuse such consent. LUBA agrees with the city, stating that the city’s interpretation of its own laws, that creating and empowering the HRB did not result in a waiver of its rights under ORS 197.772(1), is plausible and therefore must be affirmed; the city commission’s interpretation of its charter, that the city manager’s general authority is broad enough to allow them to refuse such consent, does not represent a misconstruction of its charter and therefore must be affirmed; and there is insufficient basis for believing that the legislature intended to grant the right to refuse such consent to private property owners only, and the city commission’s conclusion that 197.772(1) authorizes both public and private property owners to refuse such consent was therefore not a misconstruction of applicable law and must be affirmed. For these reasons, the third assignment of error is denied.
On the fourth assignment of error, petitioner argues that applicable sections of the OCMC entitle it to a review of its historic designation proposal on the merits and the city, therefore, erred in failing to do so. In response, the city argues that because the city manager refused to consent to petitioner’s historic designation proposal, the city was prohibited from considering the proposal. LUBA agrees with the city. The fourth assignment of error is therefore denied and the city’s decision is AFFIRMED.