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.

Petitioner appealed the City’s approval of a building permit for a nonconforming residence. The owners of the subject property originally applied to remodel the existing nonconforming residence and were approved, but in the course of remodeling they discovered the remaining structure was unsafe and required demolition. They received permission from the City to demolish the remaining structure and construct a new dwelling with the same nonconforming sidewall setbacks, provided they reapply for constructing a new residence. 

Petitioner objected to several parts of the decisionmaking process and made multiple appeals to LUBA. LUBA consolidated the appeals into two groups. At issue here was the City’s issuance of a planning checklist that stated the setbacks of the new residence were maintained as nonconforming, and the City’s note beside the approval stamp on the building plans stating the structure was legally nonconforming. Petitioner claimed the nonconformity of the new building was illegal and any new structure, as opposed to a remodel, should be built in accordance with the residential codes. In response, the City argued, among other things, that this was not a land use decision and was thus outside LUBA’s jurisdiction.

Under ORS 197.015(10)(b)(B), a land use decision “does not include a decision of a local government . . . [t]hat approves or denies a building permit issued under clear and objective land use standards[.]” While most building permits are not subject to LUBA’s jurisdiction, those with standards that are not “clear and objective” do fall within LUBA’s jurisdiction. Madrona Park, LLC v. City of Portland, __ Or. LUBA at __ (LUBA No. 2019-032, July 17, 2019) (slip op at 10). Standards are considered “clear and objective” if there are no “subjective, value-laden analyses that are designed to balance or mitigate impacts.” Rogue Valley Assoc. of Realtors c. City of Ashland, 35 Or. LUBA 139, 158 (1998), aff’d, 158 Or. App. 1, rev den, 328 Or. 594 (1999).

LUBA found that the statements regarding the legality and nonconforming status of the building on the checklist and approval note did not apply land use standards, but instead relied on an earlier land use decision made by the City that was not part of these appeals. LUBA reasoned that the building plans and permit were not “land use decisions” because they only implemented a decision that had already been made, and implementation of a decision was not a "land use decision." LUBA concluded they lacked jurisdiction over Petitioner’s appeal.

Transferred.