January 8 summaries
Botts Marsh, LLC v. City of Wheeler
Generally, LUBA will affirm a local government’s interpretation of its own provisions as long as those interpretations are “plausible.” Siporen v. City of Medford, 349 Or. 247, 259 (2010). If LUBA remands local provisions for interpretation and the local government makes new interpretations, the petitioner bears the burden of establishing that those interpretations are so different as to constitute an impermissible standard change under ORS 227.178(3)(a). However, in a limited land use decision, LUBA will find the local government erred and remand its decision if the local government adopts new interpretations in their final decision denying an application without allowing the applicant a meaningful opportunity to address those new interpretations, however plausible.
Area(s) of Law:- Land Use
Gould v. Deschutes County
If, on a land use compatibility statement (LUCS) form, a local government summarizes the status of multiple permit decisions rather than listing each decision and its specific approval status, or fails to mention potential future changes to an approved master plan, LUBA will conclude the local government’s decision as to the LUCS may still be excepted from its review under ORS 197.015(10)(b)(H).
Area(s) of Law:- Land Use
Gould v. Deschutes County
Where a local government correctly identifies land uses associated with a state agency action and correctly identifies one or more exclusions to LUBA’s exclusive jurisdiction over land use decisions under ORS 197.015(10)(b)(H), LUBA will hold it does not have jurisdiction over the matter.
Area(s) of Law:- Land Use
Gould v. Deschutes County
Where a local government's decision is excluded from the definition of a "land use decision" under ORS 197.015(10)(b)(H)(i-iii), LUBA will hold that they lack jurisdiction.
Area(s) of Law:- Land Use
Vanderburg v. City of Albany
On appeal to LUBA, a petitioner must establish that a particular issue was raised in the proceedings below. If a petitioner fails to do so, LUBA will hold that the issue has been waived or that there is insufficient information for LUBA to adequately review the local government’s decision.
Area(s) of Law:- Land Use
Woodburn Petroleum v. City of Woodburn
Where an applicant for a conditional use permit consolidates their submission with other land use applications for the subject property and treats all applications as one project, a local government does not err in applying conditional use permit criteria to the other applications or in denying the other applications if the conditional use permit is denied.
Area(s) of Law:- Land Use
Oregon Coast Alliance v. Clatsop County
Where, on remand from LUBA, a local government is instructed to interpret a subsection of its code, it is not a procedural error for the local government to also interpret the surrounding provisions without opening the record. Where a term is sufficiently limited by a local government’s interpretation of adjacent or related terms that its interpretation can be implied, that interpretation is adequate for review. LUBA will evaluate a local government’s interpretations of terms within its own code under the deferential Siporen standard.
Area(s) of Law:- Land Use
Hinkle v. City of Bend
If an issue is brought up as “general opposition” to a proposal in the proceedings before the local government, and on appeal to LUBA the issue is raised while challenging the proposed action’s compliance with specific criteria or the operative language of a provision for the first time, LUBA will find the issue has not been raised with sufficient specificity and is waived under the “raise it or waive it” rule of ORS 197.835(3).
Area(s) of Law:- Land Use
February 10 summaries
Community Participation Organization 4M v. City of Tigard
Under the Nollan and Dolan “rough proportionality” test, where a local government’s code requires a through-street for a residential development but the development will likely generate very few additional vehicle trips in the area and the cost of constructing such a road would be “devastating” for the project, the local government does not err in concluding the required street is not roughly proportional. In that instance, the local government is not forced to require the street be built and pay just compensation, and it may a) decline to apply the street requirement at issue to the application, b) consider only the project as proposed and not any alternatives, and c) find that designating the required street as “private” instead of “public” is still an exaction because the public will be required to use the street regardless of its designation.
Area(s) of Law:- Land Use
Central Oregon Landwatch v. Deschutes County
(1) Where nothing in the local code provides otherwise, LUBA will hold that determination of initiation of a conditional use, as opposed to initiation itself, need not occur before the relevant permit expires. ORS 174.010. (2) Where a petitioner raises the issue of abandonment of use in proceedings below, LUBA will hold that a local government's findings are inadequate if they do not sufficiently address it. Norvell v. Portland Area LGBC, 604 P.2d 896 (1979). (3) Where local code provisions separately provide that (a) the owner of a property and (b) the holder of the land use permit may initiate a declaratory ruling, LUBA will give effect to both provisions and hold that either party may file an application to do so. ORS 174.010.
Area(s) of Law:- Land Use
Claus v. City of Sherwood
A local government does not err in concluding ORS 92.040 applies to all local government laws rather than only those pertaining to the implementation of a comprehensive plan.
Area(s) of Law:- Land Use
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.
Area(s) of Law:- Land Use
Johnson v. Lane County
Under the policy of finality expressed in ORS 197.805, a local government may not adopt provisions that allow it to revoke final decisions indefinitely, even when it later discovers it made a mistake in its original decision due to fraud by the applicant.
Area(s) of Law:- Land Use
1000 Friends of Oregon v. Marion County
While hosting events may be a permissible home occupation on EFU-zoned property under ORS 215.448 and ORS 215.283(2)(i), ORS 215.448(1)(b) limits the number of employees allowed on the property at any time to five. This five-employee limit is an “indirect limit on the size and scope of the home occupation activities” allowed in an EFU zone.
Area(s) of Law:- Land Use
Poppleton v. Wallowa County
Where a decision is issued after the close of record but an appealable issue was raised below, LUBA will not waive the issue. LUBA will not hold for a finding that is only supported by the record – a finding must be supported by standards for approval and relevant facts.
Area(s) of Law:- Land Use
Old Hazeldell Quarry v. Lane County
Under OAR 660-023-0180, if, after thoroughly evaluating the economic, social, environmental, energy (ESEE) factors, a local government finds the factors are evenly split for and against allowing a proposed mine, LUBA will uphold the local government’s “highly subjective” decision to approve or deny the application if the findings adequately explain that decision.
Area(s) of Law:- Land Use
Gould v. Deschutes County
Under ORS 197.829(1), where a local government’s interpretation of a statute is plausible, LUBA must give deference to that interpretation.
Area(s) of Law:- Land Use
Cerelli v. City of Manzanita
Where a local government does not incorporate portions of their comprehensive plan into their land use provisions, under ORS 197.195(1), in a limited land use decision, an applicant’s failure to demonstrate compatibility with the comprehensive plan cannot be used as a reason to deny their application.
Area(s) of Law:- Land Use
March 4 summaries
Claus v. City of Sherwood
ORS 92.040 authorizes an applicant to develop one portion of the subdivided property under the standards in effect at the time of the subdivision application and develop another portion of the subdivided property under the standards currently in effect.
Area(s) of Law:- Land Use
Landwatch Lane County v. Lane County
Where a parcel is wholly transferred but later divided into separate lots because of a lien foreclosure on part of the parcel, LUBA will validate the division.
Area(s) of Law:- Land Use
Schaefer v. Marion County
Where a county’s approval of a Statewide Planning Goal 3 exception is based solely on proximity to a transportation facility, LUBA will reverse the county’s decision.
Area(s) of Law:- Land Use
Beath v. Douglas County
Where a local government does not consider all uses within the impact area and all predicted conflicts for an application under OAR 660-023-0180(5)(a) and (5)(b), LUBA will remand.
Area(s) of Law:- Land Use
April 4 summaries
Luther v. City of Albany
LUBA has jurisdiction over "any land use decision or limited land use decision of a local government." A local government decision that does does not concern the adoption of a comprehensive plan is not a "land use decision" under ORS 197.015(10)(a)(A).
Area(s) of Law:- Land Use
Phillips v. Polk County
Where a local government decision merely touches land uses in the area, LUBA will hold that the decision is not a statutory land use decision under ORS 197.015(10). Billington v. Polk County, 703 P2d 232 (1985). Where a local government decision is not a statutory land use decision and does not significantly impact current or future land uses in the area, LUBA will hold that the decision is not within LUBA’s jurisdiction. City of Pendleton v. Kerns, 653 P2d 992 (1982).
Area(s) of Law:- Land Use
Central Oregon Landwatch v. Deschutes County
Where a post-acknowledgement plan amendment (PAPA) proposes a zone change on property that contains an identified Goal 5 resource, and the new zone allows for development that was not previously considered in the original economic, social, environmental, and energy (ESEE) analysis, a local government errs in concluding that the original ESEE had already considered all development possible and a new ESEE is not necessary.
Area(s) of Law:- Land Use
Shaw v. Jackson County
Where an application for a short-term rental is shown to be an accessory use of a primary residential use, and the local government does not forbid short-term rentals as a “home occupation,” LUBA cannot say as a matter of law that the local government erred in approving a short-term rental as a home occupation.
Area(s) of Law:- Land Use
May 3 summaries
Rogue Advocates v. City of Ashland
Where the express language of a local government’s code states that an application must satisfy certain criteria to be approved, the local government must either find the application fully satisfies those criteria, or the local government must show how those criteria will be satisfied later in the development process in order to approve the application.
Area(s) of Law:- Land Use
Icon Construction and Development v. City of Oregon City
Where a local government does not apply clear and objective standards to an application that includes a needed housing argument under ORS 197.307(4), LUBA will remand the matter.
Area(s) of Law:- Land Use
Manchester Solar v. Yamhill County
Where an extension of a conditional use permit expires and applicable criteria to the original application changes before a request for another extension is made, LUBA will affirm a county’s denial of the request for an extension.
Area(s) of Law:- Land Use
June 3 summaries
Ferguson Creek Investment v. Lane County
The continuation of a lawful nonconforming use on land zoned exclusive farm use (EFU) under ORS 215.130 is not inconsistent with ORS 215.213(1)(q) or ORS 215.219 allowing the “alteration, restoration or replacement of a lawfully established dwelling” on EFU-zoned land because a “continued” use and an “alteration, restoration or replacement” are two different activities which are not mutually exclusive.
Area(s) of Law:- Land Use
Bergmann v. City of Brookings
1) Where a local government fails to make a final decision within 120 days, and where the applicant does not engage in mediation, LUBA will find that the application is not terminated pursuant to ORS 227.181(2)(b) because the intention of the legislature was to "close a loophole", not allow the local government to "sandbag" a remanded application through inaction. 2) When an issue was not raised with sufficient detail during local proceedings, LUBA will find that the issue was waived. ORS 197.797(1).
Area(s) of Law:- Land Use
Oregon Coast Alliance v. Curry County
While LUBA cannot give effect to a severance clause included in a local government ordinance, the inclusion of a severance clause is not sufficient, on its own, to provide a basis for LUBA's remand of the ordinance.
Area(s) of Law:- Land Use
July 7 summaries
Tylka v. Clackamas County
When a local government interprets its own code, LUBA will apply the "plausible" test under Siporen v. City ofMedford, 349 Or 247, 4 243 P3d 776 (2010), and give deference to the governing body's interpretation.
Area(s) of Law:- Land Use
Jenkinson v. Lane County
Prior to adopting a home rule charter, where the legislature has provided the local government with the authority to adopt standards "necessary to carry out development patterns or plans... to promote the public health, safety and general welfare", LUBA will construe such power broadly and determine that the county has adequate authority to regulate the division of land more stringently than state law.
Area(s) of Law:- Land Use
Thrive Hood River v. Hood River County
Where a petitioner does not dismiss a suspended precautionary LUBA appeal when their right to a local appeal is affirmed, LUBA will dismiss the precautionary appeal. Broderson v. City of Ashland, 66 Or LUBA 369, 376 (2012).
Area(s) of Law:- Land Use
Thrive Hood River v. Hood River County
Whether a use, such as a home occupation, may be considered “incidental and subordinate” to the predominant existing use depends on “any relevant circumstances, including the nature, intensity, and economic value of the respective uses,” including frequency, “but frequency is only one factor.” Friends of Yamhill County v. Yamhill County, 31 Or. App. 726, 739 (2020).
Area(s) of Law:- Land Use
1000 Friends of Oregon v. City of Hillsboro
When a local government prepares an economic opportunity analysis (EOA) as an update to its comprehensive plan under OAR 660-009-0015, the local government must consider vacant land as well as developed land that may be developed during the EOA’s planning period when evaluating whether there is enough land available to meet the local government’s forecasted economic development.
Area(s) of Law:- Land Use
Friends of Marion County v. Marion County
When an applicant has entered into a contract to raise trees to maturity as farm products, and has accepted payment for that contract along with its contractual duties to raise and deliver the trees to the buyer, the applicants may be considered as having earned their income from the sale of farm products under the criteria of OAR 660-033-0135(4), even though the trees have not yet been harvested and delivered to the buyer.
Area(s) of Law:- Land Use
Lenhardt v. City of Newberg
Where a local government’s decision is supported with substantial evidence and complies with applicable regulations, LUBA will not reverse or remand under ORS 197.828(2).
Area(s) of Law:- Land Use
August 4 summaries
Jacobus v. Klamath County
Under OAR 661-010-0015(3)(f)(B), a party filing a notice of intent to appeal (NITA) with LUBA must include the name of the local government’s counsel.
Area(s) of Law:- Land Use
Tylka v. Clackamas County
Where the Hearings Officer sufficiently identified the relevant standards and criteria, stated the relied upon facts, and explained the justification for the land use decision, LUBA will find that the local government applied the necessary subjective provisions to justify their land use decision as to a property setback requirement under ZDO 704.04(A). In the absence of any challenge to the officer’s application of ZDO 704.04(A), petitioner’s argument will not provide a sufficient basis for reversal or remand.
Area(s) of Law:- Land Use
Landwatch Lane County v. Lane County
Where a local government determines, pursuant to ORS 197.307(4), that it could only apply clear and objective standards to an application for a relative farm help dwelling on EFU property and located outside the UGB, LUBA will remand.
Area(s) of Law:- Land Use
Botts Marsh LLC v. City of Wheeler
During the design review stage of an application, a local government’s interpretation of its design criteria must be shown to be supported by the text, context, and purpose of the standards used in the ordinance.
Area(s) of Law:- Land Use
September 5 summaries
Central Oregon Landwatch v. Jefferson County
Where a reasonable person would not be able to identify the findings of fact and statements of reasons supporting the exceptions from a local government’s decision, LUBA will remand. Under OAR 660-004-0015(1), an amendment must be more than a list of amendments on the code’s face page with the ordinance number and ordinance date, and must indicate the subject of the amendment, including exceptions. LUBA will not affirm a local government’s decision under ORS 197.829(1) if the local government’s interpretation is not plausible. When a local government does not address the applicable criteria or fails to adopt findings of fact or statements of reasons, LUBA will remand.
Area(s) of Law:- Land Use
Dean v. Lincoln County
Where a decision by a local government lacks a clear connection to the comprehensive plan or zoning regulations, LUBA will hold that decision is not a land use decision. Ramsey v. City of Portland, 30 Or LUBA 212, 213, 217-18 (1995); Oregon Aviation Watch v. City of Hillsboro, 67 Or LUBA 252, 253, 256 (2013).
Area(s) of Law:- Land Use
Silver Creek Solar, LLC v. Marion County
Under OAR 660-006-0050(2), where both farm and forest standards apply to an application, a local government must apply all applicable standards to the application.
Area(s) of Law:- Land Use
City of Roseburg v. Douglas County
Where a local government does not adequately explain its approval or denial of a land use decision (ORS 215.416(9); Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or 3, 21 (1977)), LUBA will remand. Under LUDO 2.120(1)(a), the standard of review is a preponderance of the evidence. When a petitioner assigns error after failing to object to a procedural error below when it had the opportunity to do so, LUBA will deny the assignment of error. Torgeson v. City of Canby, 19 Or LUBA 511, 519 (1990); Dobaj v. City of Beaverton, 1 Or LUBA 237, 241 (1980). When a petitioner assigns error to statements made by the local government below instead of to the final written decision, LUBA will deny the assignment of error. Gray v. Clatsop County, 22 Or LUBA 270, 293 (1991); Gruber v. Lincoln County, 16 Or LUBA 456, 460 (1988); Bruck v. Clackamas County, 15 Or LUBA 540, 542 (1987); Oatfield Ridge Residents Rights v. Clackamas County, 14 Or LUBA 766, 768-69 (1986); Citadel Corporation v. Tillamook County, 9 Or LUBA 61, 67 (1983).
Area(s) of Law:- Land Use
Zip-O-Laminators LLC v. City of Eugene
Where a petitioner fails to show that a decision is a land use decision (ORS 197.825(10(a)(A) and fails to show that a decision significantly impacts present or future land uses, LUBA will dismiss.
Area(s) of Law:- Land Use
October 2 summaries
Winters, et. al. v. Tillamook County
Where a petitioner fails to show that a local government’s decision is a final decision subject to LUBA’s jurisdiction, LUBA will dismiss.
Area(s) of Law:- Land Use
Coopman v. City of Eugene
Where a local government fails to consider and explain that an ordinance is consistent with a planning goal, LUBA will remand.
Area(s) of Law:- Land Use