Graser-Lindsey v. Clackamas County

Under OAR 660-023-0200(9)(b), a local government may remove a property from its list of protected historical landmarks if a property deteriorates to the point that it loses the qualities which had led it to be protected, regardless of whether that loss is due to natural causes, neglect, or deliberate damage.

Petitioner appealed the removal of a county historic landmark overlay zone from a property. The subject property first received landmark designation in 1990 under the County’s historic landmark provision. In 2006, the subject property was purchased by the current owners, and in 2021 the owners applied to have the landmark designation removed. The County reevaluated the property, concluded the property no longer met the threshold to warrant a landmark overlay, approved the removal. Petitioner appealed.

On appeal, Petitioner made four assignments of error. The first three contained overlapping claims that LUBA addressed as a whole: that the County failed to apply ORS 358.605, OAR 660-023-0200(7), and two County codes when making its decision; that the County failed to apply the language expressing the purpose of Goal 5 to the application to delist the property; and that OAR 660-023-0200(9)(b)’s conditions that allowed removal of protections to a historic property pertained only to loss of its distinctive features due to natural causes, not deliberate actions or neglect because otherwise this would create a loophole that allowed neglect or deliberate destruction to “undo” the preservation goals of the provision.

Under OAR 660-023-0200(9)(b), a local government may remove the Goal 5 protections from a historical resource if “(A) [t]he resource has lost the qualities for which it was originally recognized; [or] (B) [a]dditional information shows that the resource no longer satisfies the criteria for recognition as a historic resource or did not satisfy the criteria for recognition as a historic resource at time of listing[.]"

LUBA rejected Petitioner’s claims that ORS 358.605, OAR 660-023-0200(7), and the two County codes applied to the decision, and thus the County did not err in not applying them in its decision to delist the property. LUBA also rejected Petitioner’s claim that the general Goal 5 language had to be applied separately to the application because that language did not impose additional requirements outside the numbered provisions of Goal 5. LUBA also agreed with the County that the text of OAR 660-023-0200(9)(b) did not support Petitioner’s interpretation that only natural causes were to be considered in determining whether a property had “lost” its qualities. Rather, LUBA noted the rule had been adopted to “provide express authority where none previously existed for local governments to choose to allow delisting under specified circumstances.” As there was no directive in the text requiring local governments to consider how a property had lost its qualities, LUBA concluded Petitioner’s interpretation would require inserting language into the rule that was not there. LUBA concluded, under that this argument, the County had the authority to delist the property.

Affirmed.