January 0 summaries
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April 10 summaries
Jacobus et. al. v. Klamath
Development rights conferred by an authorization under section 6 of Measure 49 are not subject to “a land use regulation enacted by the state or county that has the effect of prohibiting the partition or subdivision, or the dwelling.” Measure 49, § 6(8).
Area(s) of Law:- Land Use
Tadei v. City of Astoria
Under OAR 661-010-0030(4), a petition to LUBA must contain: (a) “the facts that establish petitioner’s standing;” (b) “a clear and concise statement of the facts in the following order[:] (A) The nature of the land use decision . . . and the relief sought by petitioner; (B) A brief summary of the arguments appearing under the assignments of error[;] (C) A summary of the material facts . . . in narrative form with citations to the record where the facts alleged can be found[;]” (c) a statement of “why the challenged decision is a land use decision . . . subject to [LUBA]’s jurisdiction;” (d) “each assignment of error[.]” “Although each of the . . . requirements [for the petition for review] is important, the requirement . . . that the petition for review include assignments of error, supported by argument, is particularly important.” Bjerk v. Deschutes County, 17 Or. LUBA 187, 194 (1988).
Area(s) of Law:- Land Use
Friends of Yamhill County v. Yamhill County
LUBA will hold that an issue was not raised below with “sufficient specificity” to be preserved, Boldt v. Clackamas County, 21 Or LUBA 40, 46, aff'd, 107 Or App 619 (1991) where, during local proceedings, the issue was: 1) merely referenced in the context of an alternate argument, or 2) expressed in terms of generalized concerns, but raised before LUBA in technical detail.
Area(s) of Law:- Land Use
Maher v. Multnomah County
Where a petitioner fails to raise an issue in an initial evidentiary proceeding, the issue may not be raised for the first time before LUBA. ORS 197.797(1); ORS 197.835(3).
Area(s) of Law:- Land Use
Hendrickson v. Lane County
Counties may not subject temporary hardship dwellings to local criteria that are more restrictive than state statute. Brentmar v. Jackson County, 321 Or 481 (1995); Lane County v. LCDC, 325 Or 569 (1997).
Area(s) of Law:- Land Use
Schaefer v. Oregon Aviation Board
Under ORS 197.850(9)(a), the court may reverse or remand LUBA’s decision if it finds the order is “unlawful in substance or procedure, but error in procedure is not cause for reversal or remand unless the court finds that substantial rights of the petitioner were prejudiced” by that error. In the event that the record is missing an item necessary for LUBA to perform its review function, remanding the decision is the appropriate remedy. Andrews v. City of Prineville, 28 Or LUBA 653, 661-62 (1995). When LUBA reverses or remands a land use decision, LUBA must “decide all issues presented to it” when “the findings, order and record are sufficient to allow review[.]” ORS 197.835(11)(a).
Area(s) of Law:- Land Use
Scott v. Josephine County
Where a private campground on EFU land does not provide electrical service hookups for each individual campsite, it is not a violation of OAR 660-033-0130(19)(b).
Area(s) of Law:- Land Use
Oregon Coast Alliance et al v. Clatsop County
1) Where the hearings officer fails to address adequately suitability issues raised during the petition for review, as required under LAWDUC 2.4030(3)(c), LUBA will remand in order to adopt findings on the issue. 2) Where the local government's interpretation of the purpose of its comprehensive land use regulations is entirely consistent with the regulatory action taken, LUBA shall affirm the regulatory action. ORS 197.829(1).
Area(s) of Law:- Land Use
Friends of Marion County v. Marion County
“Even if a commercial activity primarily sells to farm uses, that may not be sufficient to allow the commercial activity to qualify as a commercial activity in conjunction with farm use . . . The products and services provided must be ‘essential to the practice of agriculture.’” City of Sandy v. Clackamas County, 28 Or LUBA 316, 322 (1994). The farm impacts test requires (1) the applicant to identify the surrounding lands, the farms on those lands, the accepted farm practices on each farm, and the impacts of the proposed nonfarm use on each farm practice; (2) the local government to determine whether the proposed nonfarm use will force a "significant" change to, or cost increase in, an accepted farm practice, as that term is ordinarily used; and (3) if there is a significant change, the local government to determine whether the applicant has demonstrated that the nonfarm use meets the test with conditions of approval.
Area(s) of Law:- Land Use
ATR Services et al v. Lane County
In interpreting LCC 13.150(1) consistently with ORS 192.176, “created by sale” does not include a unit of land reconfigured through a property line adjustment.
Area(s) of Law:- Land Use
May 6 summaries
Tadei v. City of Astoria
Under OAR 660-010-0030(4), a petition for review must assign error and provide arguments for why a decision below must be reversed.
Area(s) of Law:- Land Use
Columbia Riverkeeper v. Columbia County
Under OAR 660-004-0020(2)(d), to be approved, a Goal 3 exception must make a showing that “[t]he proposed uses are compatible with other adjacent uses . . . ” and that “the proposed use is situated in such a manner as to be compatible with surrounding natural resources and resource management or production practices.”
Area(s) of Law:- Land Use
Conte v. City of Eugene
(1-1) On remand from LUBA and the Oregon Court of Appeals, a local government may change their approach to amending local land use regulations without necessitating adoption of specific findings as to their reason for changing course as long as “required considerations were indeed considered.” (1-2) When determining residential density under EC 9.3626(1)(g) “it is permissible to count a detached single-family dwelling and its accessory dwelling as one dwelling” because EC 9.3626(1)(a) to (c) already interprets the word “dwelling” flexibly when pertaining to density ranges in the Eugene-Springfield Metropolitan Area General Plan. (2) The “prevent [ion of] the erosion of the neighborhood’s residential character” in the Westside Neighborhood Plan Land Use Element Policy 1 refers only to those changes “rezoning or redesignating residentially zoned properties therein.” (3) “Complicated does not equate to ambiguous” when considering if local governments “adopt and apply only clear and objective standards, conditions, and procedures regulating the development of housing” as required by ORS 197.307(4).
Area(s) of Law:- Land Use
OR Dep't of Fish and Wildlife v. Crook County
A plan with unknown off-site locations for conservation efforts which are not owned in fee is not a reliable “no net loss” mitigation policy under OAR 635-415-0025.
Area(s) of Law:- Land Use
Botts Marsh, LLC v. City of Wheeler
Under ORS 197.195(4), “[a]pproval or denial of a limited land use decision shall be based upon and accompanied by a brief statement that explains the criteria and standards considered relevant to the decision, states the facts relied upon in rendering the decision and explains the justification for the decision based on the criteria, standards and facts set forth.” If the local government finds the application does not comply with the applicable standards, their “findings must be sufficient to inform the applicant either what steps are necessary to obtain approval or that it is unlikely that the application will be approved. . . . The findings must provide a coherent explanation for why the city believes the proposal does not comply with the criteria.” Bridge Street Partners v. City of Lafayette, 56 Or LUBA 387, 394 (2008).
Area(s) of Law:- Land Use
Kulongoski v. City of Portland
Portland City Code 33.825.040 allows a review body to approve modifications of site-specific development standards that “better meet design guidelines” and are consistent with the “purpose of the standard for which a modification is requested.”
Area(s) of Law:- Land Use
June 8 summaries
Gould v. Deschutes County
Substantial evidence is evidence that a reasonable person would rely upon to reach a decision. Dodd v. Hood River County, 855 P.2d 608 (Or. 1993). When reviewing the evidence, LUBA cannot substitute its judgement for that of the local decision-maker but must determine whether a reasonable local decision-maker could reach the decision it did based on the evidence presented. Younger v. City of Portland, 752 P.2d 262 (Or. 1988).
Area(s) of Law:- Land Use
1000 Friends of Oregon et al v. Josephine Cnty.
1) Where a plan amendment is proposed, OAR 660-006-0010 requires hierarchal analysis of specified data sources before proceeding to alternative means of determining forest land productivity. 2) OAR 660-004-0040 does not apply to nonresource land; findings as to a Goal 14 exception must “identify the relevant criteria, the evidence relied upon, and why the evidence supports the conclusion that the criteria are or are not met,” Heiller v. Josephine County, 23 Or LUBA 551 (1992); and if a plan amendment could result in residential densities inconsistent with Goal 14 an exception must be taken, Wood v. Crook County, 49 Or LUBA 682 (2005).
Area(s) of Law:- Land Use
Kretzer v. City of Shady Cove
Under ORS 197.835(9)(a)(C), LUBA will remand a local government decision if it is “not supported by substantial evidence in the whole record.” Substantial evidence is evidence that a reasonable person would rely upon to reach a decision. Dodd v. Hood River County, 855 P.2d 608 (1993).
Area(s) of Law:- Land Use
Anunziata Gould v. Deschutes County
“[T]he plain meaning of [DCC 18.16.040(A)(3)] requires that the proposed conditional use be located on the single site on the subject property that is least suitable.” Oregon Landwatch v. Deschutes County, 78 Or LUBA 136, 147 (2018). An option to apply for an incidental take permit does not substitute determining compatibility with surrounding properties under DCC 18.128.015(B).
Area(s) of Law:- Land Use
Gould v. Deschutes County
Generally, parties in quasi-judicial land use proceedings have a right to present and rebut evidence. Fasano v. Washington Co. Comm., 507 P2d 23 (1973). However, "there is no unlimited right to rebut rebuttal evidence, and Fasano does not require endless opportunities to rebut rebuttal evidence." Rice v. City of Monmouth, 53 Or LUBA 55, 60 (2006), aff’d, 154 P3d 786 (2007).
Area(s) of Law:- Water Rights
Joy v. City of Ashland
1) The location of a particular issue within a set of findings is not dispositive, nor is the manner in which it is framed, so long as the issue is present and adequately addressed. 2) "[LUBA] will affirm a local government decision where a petitioner fails to acknowledge or challenge the findings adopted to address the issues petitioner attempted to raise below, Dion v. Baker County, 72 Or LUBA 18 307, 314-15 (2015), even where the findings adopted are that a particular issue is irrelevant. 3) Where a conclusion as to a broad array of circumstances is supported by substantial evidence, a conclusion as to a particular circumstance within that array is also supported by substantial evidence.
Area(s) of Law:- Land Use
Gould v. Deschutes County
1) Where a final master plan places a limitation on an aspect of a development, that limitation will be held to have effect following modifications to other areas of the master plan. 2) Where an interpretation of two applicable provisions harmonizes and gives them both effect, that construction will be upheld.
Area(s) of Law:- Land Use
Christian Futures v. Lane County
Under ORS 92.010(3)(a), a lawfully established unit of land is “(i) [a] lot or parcel created by filing a final plat for subdivision or partition; or (ii) [a]nother unit of land created[] (aa) [i]n compliance with all applicable planning, zoning and subdivision or partition ordinances and regulations; or (bb) [b]y deed or land sales contract, if there were no applicable planning, zoning or subdivision or partition ordinances or regulations.”
Area(s) of Law:- Land Use
July 7 summaries
Schaefer v. Marion County
LUBA will interpret OAR 660-004-0020(2)(b) to include land available for lease unless the record demonstrates that the property owner is "categorically unwilling" to lease the land. Columbia Riverkeeper v. Columbia County, 70 Or LUBA 171, 195, aff’d, 267 Or App 637 (2014). Findings must address and respond to specific issues relevant to compliance with applicable approval standards that were raised in the proceedings below. Norvell v. Portland Area LGBC, 43 Or App 849, 853 (1979). Statewide planning goals are the foundation of Oregon’s land use system, exceptions are exceptional, 1000 Friends of Oregon v. LCDC, 69 Or App 717, 731 (1984), and a reasons exception is the most limited type. Riverkeeper I, 70 Or LUBA at 181-82.
Area(s) of Law:- Land Use
Windlinx Ranch Trust v. Deschutes County
1) LUBA will generally not second guess a land use decision-maker's choice between conflicting expert testimony, so long as it appears to LUBA that a reasonable person could decide as the decision-maker did, based on all of the evidence in the record. Westside Rock v. Clackamas County, 51 Or LUBA 264, 294 (2006); Wal-Mart Stores, Inc. v. City of Bend, 52 Or LUBA 261, 276 (2006). 2) A petitioner's arguments must give a county "fair notice" of an issue. Boldt v. Clackamas County, 107 Or App 619, 623 (1991). 3) Only parcels that are lawfully created may be counted in determining whether the requirements of the forest template dwelling statute have been met. Friends of Yamhill County v. Yamhill County, 229 Or App 188, 198 (2009). 4) Substantial evidence is evidence a reasonable person would rely on in making a decision. Dodd v. Hood River County, 317 Or 172, 179 (1993).
Area(s) of Law:- Land Use
Recht v. City of Depoe Bay
1) Where a local government makes findings based on the assertions of an applicant’s representatives in disregard of evidence to the contrary, and where those findings are based on a record which lacks outcome determinative information, LUBA will hold that they are inadequate. 2) Where local zoning code requires that a variance must be “necessary for the preservation of a property right of the applicant substantially the same as owners of other property in the same zone of vicinity possess,” LUBA will hold that the noncompliance of an existing development alone is not substantial evidence of the existence of a corresponding property right in others to develop in the same manner.
Area(s) of Law:- Land Use
Sherman v. Deschutes County
Under DCC 215.283(1), placement of a necessary public utility in the public right-of-way constitutes a reconstruction or modification of public roads and highways. DCC 18.84.050(A) does not require a new structure exempt from needing a building permit to obtain site plan approval in accordance with DCC 18.84 prior to construction.
Area(s) of Law:- Land Use
Old Hazeldell Quarry v. Lane County
Where an applicant seeks to amend a local government’s comprehensive plan and zoning ordinance to allow for mining, a local government denying the application need not adopt findings to inform the applicant of the steps necessary to gain approval because the decision is subjective and requires the weighing of local interests.
Area(s) of Law:- Land Use
Sikora v. Lane County
An applicant carries the burden of proof to establish that applicable criteria are satisfied, regardless of whether the criteria require the applicant to prove a positive or negative. York v. Clackamas County, __ Or. LUBA __, __ (LUBA No. 2019-081, Jan. 9, 2020) (slip op at 12).
Area(s) of Law:- Land Use
Gould v. Deschutes County
A state agency permit is a means of showing compliance with a water supply requirement, unless it can be demonstrated that the permit cannot be obtained “as a matter of law” Bouman v. Jackson County, 23 Or. LUBA 628, 646-47 (1992). Where a permit has expired and its renewal is subject to pending litigation, LUBA will hold that it is not unattainable as a matter of law.
Area(s) of Law:- Land Use
August 6 summaries
Monroe v. City of Corvallis
Under ORS 197.015(10)(b)(H),“a proposed state agency action . . . is compatible with the acknowledged comprehensive plan and land use regulations implementing the plan,” and excluded from LUBA’s jurisdiction, “if: (i) [t]he local government has already made a land use decision authorizing a use or activity that encompasses the proposed state agency action; . . . or (iii) [t]he use or activity that would be authorized . . . by the proposed state agency action requires a future land use review under the acknowledged comprehensive plan and land use regulations implementing the plan[.]”
Area(s) of Law:- Land Use
Phillips v. City of Corvallis
Under ORS 197.825(2)(a), LUBA’s jurisdiction is limited to “those cases in which petitioner has exhausted all remedies available by right before petitioning the board for review[.]” However, under ORS 197.830(3), “[i]f a local government makes a land use decision without providing a hearing . . . a person adversely affected by the decision may appeal the decision to the board[.]” These appeals are not subject to the exhaustion requirement under ORS 197.825(2)(a) unless the local government voluntarily grants a local appeal, then the local remedy must be exhausted before appealing to LUBA. Comrie v. City of Pendleton, 45 Or. LUBA 758, 772 (2003).
Area(s) of Law:- Land Use
Briggs et al v. Lincoln County
ORS 215.130(5) provides: "The lawful use of any building, structure or land at the time of the enactment or amendment of any zoning ordinance or regulation may be continued,” and “[a] change of ownership or occupancy shall be permitted." “[W]hen a local enactment is found incompatible with state law in an area of substantive policy, the state law will displace the local rule.” La Grande/Astoria v. PERB, 576 P2d 1204, aff’d on reh’g, 586 P2d 765 (1978).
Area(s) of Law:- Land Use
Landwatch Lane Cnty. v. Lane Cnty.
ORS 215.780 “authorizes [a] county to allow the partition of a property to create a five acre parcel to house a qualified dwelling and that both of the resulting parcels may be less than 80 acres, so long as the parcel without the dwelling is constrained in its ability to house a dwelling in the future.” Russell v. Lane County, _ Or LUBA _ (LUBA No 2020-072, Jan 8, 12 2021).
Area(s) of Law:- Land Use
Nelson v. City of Hillsboro
Under ORS 174.010, errors in figures used for city planning are not within LUBA’s authority to correct. An assignment of error that collaterally attacks a city ordinance implicated in the decision on appeal provides no basis for LUBA to reverse or remand. Turner v. Jackson County, 62 Or. LUBA 199, 201 (2010), aff’d, 249 P.3d 564 (2011); Butte Conservancy v. City of Gresham, 47 Or. LUBA 282, 296, aff’d, 100 P.3d 218 (2004).
Area(s) of Law:- Land Use
East Park, LLC v. City of Salem
1. Local criteria utilizing subjective and value-laden judgments do not satisfy the requirement of clear and objective procedures under ORS 197.307(4). 2. Even if an alternative approval process is available under ORS 197.307(6), it may not be utilized in a local government decision unless the applicant has an option to pursue their application under ORS 197.307(4) with clear and objective criteria.
Area(s) of Law:- Land Use
September 6 summaries
Hurst et al. v. City of Rogue River
1) Where a local government chooses one of two procedural pathways to revoke a CUP, and the applicant makes no showing of a procedural error, that the applicant would have preferred the other pathway is immaterial; 2) Where a local ordinance places the burden of proof on the proponent of a CUP-related proposal, LUBA will hold that the burden of proof rests with the local government applying to revoke a CUP, and not with the party who initially applied for the CUP; 3) Where a local ordinance employs a requirement of proof of a “public need” served, LUBA will hold that it is a “highly subjective standard,” and will decline to apply the “clearly supports” standard from ORS 197.835(11)(B), which is only appropriate where approval standards are objective.
1st John 2:17, LLC v. City of Boardman
Where a local government awards a contract for a project identified in a comprehensive plan, the decision to do so generally does not constitute a “land use decision” because it does not “concern the application of a comprehensive plan.” Where a local government awards a contract dependent on another process, such as zoning permitting, the contract is not a “final decision” as required by ORS 197.015(10)(a).
Area(s) of Law:- Land Use
Gould v. Deschutes County
Under ORS 197.797(1), an issue is preserved for review by LUBA if it has been “raised and accompanied by statements or evidence sufficient to afford [LUBA] and the parties an adequate opportunity to respond to each issue.” A petition for review to LUBA must demonstrate that the issue “was preserved during the proceedings below,” OAR 661-010-0030(4)(d), and LUBA will not search the record or large page ranges to find whether an issue was preserved. H2D2 Properties, LLC v. Deschutes County, __ Or. LUBA __, (LUBA No. 2019-066, Dec. 2019) (slip op at 7-9). However, because the purpose of ORS 197.797(1) is to provide the parties and the decisionmaker “an adequate opportunity to respond to each issue,” LUBA will not deny an assignment of error due to an insufficient preservation statement a) if the reply brief provides more focused citations to where an issue was raised, b) “where it is evident from the challenged decision itself that the issues raised” were “central” to the proceedings below, and c) if “the local government’s decision responds to those issues.” Nehmzow v. Deschutes County, __ Or. LUBA __, __ (LUBA No. 2019-110, Aug. 10, 2020) (slip op at 14-15).
Area(s) of Law:- Land Use
1000 Friends of Oregon v. Linn County
(1) Where a petition for review is deficient under OAR 661-010-0030(2) (relating to formatting requirements) and (4) (relating to substantive requirements), LUBA will hold that a correction to the petition’s formatting alone is allowable under OAR 661-010-0030(3) (as distinguished from an amendment to the petition’s substance which, under OAR 661-010-0030(6), is allowable only with permission from LUBA). (2) Where a petitioner’s claimed errors are discernable from their petition for review despite their failure to set out separate assignments of error, LUBA will hold that the substantial rights of the other parties were not prejudiced. (3) Where a petitioner’s preservation statement is inadequate under OAR 661-010-0030(4)(d), but it is possible to ascertain from the record citations in their reply brief where they allege the issues raised in the petition for review were preserved, LUBA will hold that the inadequacy of the preservation statement is a technical violation and that the substantial rights of the other parties were not prejudiced.
Area(s) of Law:- Land Use
1625 Sherman Ave. LLC v. City of North Bend
Where a local government’s findings merely respond to a petitioner’s arguments, LUBA will not find, without more, sufficient grounds for concluding that the local government exercised policy or legal judgment in reaching its decision.
Area(s) of Law:- Land Use
Oregon Coast Alliance v. Tillamook County
Under OAR 660-004-0022(1), a local government it may approve a “reasons” exception upon demonstration that the subject site has specific, unique considerations that require the exception to meet a need under Goals 3 through 19.
Area(s) of Law:- Land Use
October 7 summaries
1st John 2:17, LLC v. City of Boardman
Where the record shows that a party has been granted advance occupancy of an easement, it is not inconsistent with the express language of a local ordinance applying to “record owner[s] of property (person(s) whose name is on the most recently recorded deed)” to classify that party as “a record owner." Even when a private utility company is providing a service to the general public it is not inconsistent with a local ordinance applying to “[p]rivate utilities (e.g. natural gas, electricity, telephone, cable, and similar facilities)” to classify the company as a “private utility.”
Area(s) of Law:- Land Use
Husk v. City of Bend
Where applicable, a local government must consider the implementation of ORS 197.758, the “middle housing statute,” when evaluating code compliance of an applicant’s proposed subdivision of single-family homes.
Area(s) of Law:- Land Use
Zimmerlee v. Crook County
Where a party seeking to appeal a county land use decision files a NITA two days late and makes no showing of prejudice, LUBA will strictly construe ORS 197.830(9) and dismiss the appeal.
Area(s) of Law:- Land Use
Smith v. Douglas County
Absent a local ordinance specifying otherwise, LUBA will find a county official who receives a misfiled appeal of a land use decision has the authority to deny the application for improper filing.
Area(s) of Law:- Land Use
1000 Friends of Oregon v. Columbia County
When a term for a transportation use that does not require an exception to a Statewide Planning Goal is undefined in the statute, LUBA will look to the plain meaning of the words and available state agency definitions to determine whether the proposed uses are consistent with that definition or exceed it and require an exception.
Area(s) of Law:- Land Use
1st John 2:17, LLC v. City of Boardman
LUBA will grant deference to a local government’s interpretation of an ambiguous land use regulation unless its interpretation is inconsistent with the express language, purpose, or underlying policy of the provisions. ORS 197.829(1). Where the provisions in question do not include express language contrary to a local government’s interpretation, but there is nevertheless a “strong implication” that a different interpretation is required, LUBA will not grant deference.
Area(s) of Law:- Land Use
Dooley v. Wasco County
When approving an irrevocable exception to a Statewide Planning Goal, a local government must fully evaluate the subject property’s relationship to uses of all adjacent properties to determine if the subject property is irrevocably committed to a non-resource use. ORS 197.732; OAR 660-004-0028.
Area(s) of Law:- Land Use
November 6 summaries
Marick v. City of Lake Oswego
Where a city approves a Residential Infill Design (RID) and a building official later determines that a portion of the nonconforming home built prior to the current zoning requirements is unsafe and requires reconstruction, LUBA will hold that the project, even if amounting a completely new structure, still satisfies the requirements of a local ordinance which permits “reconstruction of a damaged nonconforming structure and exempts that reconstruction from contrary . . . provisions to the extent that the damaged portions of the structure failed to conform.” Accordingly, LUBA will hold that the project does not require a new or modified RID application.
Area(s) of Law:- Land Use
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.
Area(s) of Law:- Land Use
Botts Marsh, LLC v. City of Wheeler
Where a local government denies an application for a conditional use permit after evidentiary review, and where evidence offered by the applicant would have required the local government to infer alleged facts, LUBA will hold on appeal that the applicant’s evidence was not such that no reasonable trier of fact could not have believed it and, accordingly, there are no grounds for reversal.
Area(s) of Law:- Land Use
House v. City of Bend
Where a petitioner does not develop a response to local government’s argument that its decision was not a “land use decision” pursuant to ORS 197.015(10)(a)(A) because it applied a design standard rather than a land use regulation, LUBA will hold that the petitioner has failed to meet their burden of establishing that the challenged decision is a "land use decision" under Billington v. Polk County, 703 P2d 232 (Or. 1985). Accordingly, LUBA will deny jurisdiction.
Area(s) of Law:- Land Use
Red Grapes, LLC et al v. Clackamas County
Where a building is to be “constructed resembling a house,” but to “function as a clinic,” LUBA will find that the building is not an accessory building normally associated with the primary uses in a zone which allows only one single-family dwelling, duplex, or manufactured dwelling per lot unless an accessory dwelling unit or temporary permit is received. Where a local ordinance limits accessory buildings or uses to those “the function of which is clearly incidental to that of the main building or use on the same lot,” LUBA will construe “subordinate” and “clearly incidental” to require more than a tangential relationship to the dwelling.
Area(s) of Law:- Land Use
Delmonico v. Washington County
1) Where an assignment of error is raised solely in the footnotes of a petition for review, LUBA will not address it. 2) Where an on-site delineation of a significant natural resource (SNR) is determined to be different from the general location on the SNR inventory map, LUBA will hold that a local government does not err in concluding the on-site delineation is the proper location of the resource. 3) Where a development activity is excepted from a restriction under local ordinance, LUBA will hold that a condition on the approval of the development activity need not also be separately excepted.
Area(s) of Law:- Land Use
December 6 summaries
Backer v. City of Salem
As part of a limited land use decision, LUBA will affirm a local government’s interpretation of its local codes provided their decision includes the standards and criteria used as required under ORS 197.195(4) and is supported by substantial evidence such that a reasonable person viewing the record as a whole could reach the conclusion the decisionmaker did.
Area(s) of Law:- Land Use
Bend Research v. Deschutes County
When a private utility company applies for a LUCS merely to extend its connections to other customers without altering its treatment facility, and such extensions are allowed under the local code without restriction, LUBA will conclude it lacks jurisdiction under ORS 197.015(10)(b)(H).
Area(s) of Law:- Land Use
Central Oregon Landwatch v. Deschutes County
1) Where an issue is previously conclusively decided against a petitioner in a final reviewable LUBA decision, LUBA will consider the issue waived. 2) Where DLCD issues order acknowledging an amended land use ordinance is sufficient to ensure consistency with Goal 14, LUBA will find that no exception to Goal 14 is required. 3) Where a county’s comprehensive plan limits the intensity of rural industrial uses beyond what is allowed by regulation in unincorporated communities, LUBA will hold that limitation is "independently sufficient" to demonstrate a PAPA's compliance with Goal 14, and analysis under the Shaffer test is not be required.
Area(s) of Law:- Land Use
Ericsson v. Lane County
An application under section 11 of Measure 49 is not a permit within the meaning of ORS 215.402(4), and a local government does not err in refusing to issue a refund to a Measure 49 applicant for approval of an application outside the final action time requirement of ORS 215.427(8).
Area(s) of Law:- Land Use
Haj v. City of Portland
Where a local government’s decision falls under the exception to LUBA’s jurisdiction under ORS 197.015(10)(b)(D), the “significant impacts” test, which may give LUBA jurisdiction over decisions that do not qualify as a “land use decision” but create “an actual qualitatively or quantitatively significant impact” on surrounding land uses, will not grant LUBA jurisdiction over the appeal. Fire Mountain Gems and Beads v. City of Grants Pass, 57 Or. LUBA 597, 606-07 (2008) (citing Oregonians in Action v. LCDC, 103 Or. App. 35, 38, (1990)).
Area(s) of Law:- Land Use
Friends of Yamhill County v. Yamhill County
Under ORS 215, LUBA will find the operation of a bed and breakfast is allowed as a “home occupation” permitted in the “dwelling house” on a property zoned exclusive farm use.
Area(s) of Law:- Land Use