LUBA Headnotes Database
Oregon Land Use Board of Appeals case law, organized by topic and searchable.
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1. - Administrative Law
1.1 - Interpretation of Law
1.1.1 - Generally
1.1.2 - Rules of Construction
1.1.3 - Effect of Local Government Interpretation
1.1.4 - Procedural Requirements
1.2 - Denials
1.2.1 - Generally
1.2.2 - Requirements for
1.2.3 - Burden to Challenge
1.2.4 - Evidence to Support
1.3 - Findings Generally
1.3.1 - What Constitutes
1.3.2 - Necessary Elements
1.3.3 - Form of
1.4 - Adequacy of Findings
1.4.1 - Generally
1.4.2 - Applicable Standards
1.4.3 - Facts Relied on
1.4.4 - Explanation of Rationale
1.4.5 - Related Findings
1.4.6 - Issues Addressed
1.4.7 - Scope
1.4.8 - Logic and Consistency
1.5 - Requirements for Findings
1.5.1 - Generally
1.5.2 - Statutes
1.5.3 - Statewide Goals
1.5.4 - Administrative Rules
1.5.5 - Local Standards
1.6 - Substantial Evidence
1.6.1 - Generally
1.6.2 - Definition of
1.6.3 - Official Notice
1.6.4 - Expert Testimony
1.6.5 - Conflicting Evidence
1.7 - Evidence Which Clearly Supports
1.8 - Burden of Proof
1.6 - Substantial Evidence
2. - Constitutional Law
2.1 - Oregon Constitution
2.1.1 - Procedural Issues
2.1.2 - Nonprocedural Issues
2.2 - U.S. Constitution
2.2.1 - Procedural Issues
2.2.2 - Nonprocedural Issues
2.3 - Nonspecific Constitutional Claims
3. - EFU Statute/Ordinances
3.1 - Generally
3.2 - Farm Uses
3.2.1 - Generally
3.2.2 - Farm Dwellings
3.2.3 - Other Uses
3.3 - Nonfarm Uses
3.3.1 - Generally
3.3.2 - Mineral Operation
3.3.3 - Dwellings
3.3.4 - Compatibility Standard
3.3.5 - Noninterference Standard
3.3.6 - Stability Standard
3.3.7 - Unsuitability Standard
3.3.8 - No Significant Change/Increase Std
3.3.9 - Other Uses
3.4 - Land Divisions
3.4.1 - Generally
3.4.2 - Minimum Lot Sizes
3.5 - Statutory Policy
3.6 - Lot of Record Dwellings
4. - Statewide Planning Goals/LCDC Rules
4.1 - Applicability
4.2 - Compliance with
4.3 - Definitions
4.4 - Acknowledgment
5. - Citizen Involvement
6. - Land Use Planning
6.1 - Generally
6.2 - Coordination
6.3 - Exceptions/ Exception Rule
6.3.1 - Generally
6.3.2 - Developed
6.3.3 - Committed
6.3.4 - Reasons
6.3.5 - When Required
6.3.6 - Changes to
6.4 - Alternative Courses of Action
6.5 - Adequate Factual Base
7. - Agricultural Lands/Goal 3 Rule
7.1 - Generally
7.2 - Agricultural Land Definition
7.2.1 - Generally
7.2.2 - Soil Classes
7.2.3 - Other Suitable Land
7.2.4 - Other Necessary Land
7.3 - Minimum Lot Size Standard
7.3.1 - Commercial Agricultural Enterprise
7.3.2 - Operation and Effect of
7.4 - Land Divisions
7.5 - Multiple Resource Lands
7.6 - Exceptions to
7.7 - Farm Uses
7.7.1 - Generally
7.7.2 - Farm Dwellings
7.8 - Nonfarm Uses
8. - Forest Lands/Goal 4 Rule
8.1 - Generally
8.2 - Forest Land Definition
8.3 - Forest Uses
8.4 - Nonforest Uses
8.5 - Land Divisions
8.5.1 - Generally
8.5.2 - Minimum Lot Sizes
8.6 - Multiple Resource Lands
8.7 - Exceptions to
8.8 - Forest Dwellings
8.9 - Lots of Record
8.10 - Forest Practices Act
9. - Open Spaces and Natural Resources/Goal 5 Rule
9.1 - Generally
9.2 - Resource Inventory
9.3 - Conflicting Use Identification
9.4 - ESEE Consequence Determination
9.5 - Resource Protection Programs
10. - Air, Water and Land Resource Quality
11. - Natural Disasters and Hazards
12. - Recreational Needs
13. - Economy of the State/Goal 9 Rule
14. - Housing/Goal 10 Rule
15. - Pupblic Facilities and Services/Goal 11 Rule
16. - Transportation/Goal 12 Rule
17. - Energy Conservation
18. - Urbanization/Goal 14 Rule
18.1 - Generally
18.2 - Establishment of UGB
18.3 - Amendment of UGB
18.4 - Conversion Factors
18.5 - Urban Uses on Rural Land
18.6 - Annexations/Incorporation
18.6.1 - Goal Standards
18.6.2 - LCDC Rule
18.7 - Exceptions to
18.8 - Urban Reserves
19. - Willamette River Greenway
20. - Estuarine Resources
21. - Coastal Shorelines
22. - Beaches and Dunes
23. - Ocean Resources
24. - Standing
24.1 - Before Local Government
24.2 - Before LUBA
24.2.1 - Generally
24.2.2 - Requirement to Establish
24.2.3 - Appearance
24.2.4 - Right to Notice
24.2.5 - Adverse Effect
24.2.6 - Aggrievement
24.2.7 - Quasi-judicial Decision
24.2.8 - Legislative Decision
24.2.9 - Limitations on
24.2.10 - State Agencies
24.3 - Representational
25. - Local Government Procedures
25.1 - Generally
25.2 - Authority to Act
25.3 - Compliance with Statutes
25.3.1 - Generally
25.3.2 - Applicable Criteria
25.3.3 - Notice of Hearing
25.3.4 - Hearings
25.3.5 - Time Limit for Final Action
25.3.6 - Findings
25.3.7 - Notice of Decision
25.3.8 - Appeals
25.3.9 - Raise It/Waive It (ORS 197.763)
25.3.10 - Limited Land Use Decisions
25.4 - Compliance with Local Ordinances/Regs
25.4.1 - Generally
25.4.2 - Application Requirements
25.4.3 - Notice Requirements
25.4.4 - Requirements for Standards/Criteria
25.4.5 - Deviations From
25.4.6 - Changes in Law
25.4.7 - Appeal Rights
25.5 - Delegation of Authority
25.6 - Hearings
25.6.1 - Generally
25.6.2 - Limitations on Presentation
25.6.3 - Evidence
25.6.4 - Site Visits
25.6.5 - Impartial Tribunal
25.6.6 - When Required
25.7 - Legislative/Quasi-judicial Distinction
25.8 - Discretionary/Ministerial Distinction
25.9 - Formalities of Decisions
25.10 - Necessity for Objections to
25.11 - Action After Remand
25.12 - Other
26. - LUBA Jurisdiction
26.1 - Generally
26.2 - Land Use Decision: Statutory Test
26.2.1 - Generally
26.2.2 - Final Decision
26.2.3 - Local Government/Special District Decision
26.2.4 - Goal, Plan or Land Use Regulation
26.2.5 - State Agency Decision
26.2.6 - Ministerial Exception
26.2.7 - Urban Division Exception
26.2.8 - Limited Land Use Decision
26.2.9 - Transportation Facility Exception
26.2.10 - Compatibility Statement Exception
26.2.11 - Zoning Classification Decisions
26.3 - Land Use Decision: Significant Impacts Test
26.4 - Land Use Decision: Exclusions
26.5 - Exhaustion of Remedies
26.6 - Mootness
26.7 - Effect of LCDC Proceedings
26.8 - Effect of Circuit Court Proceedings
26.9 - Statute of Ultimate Repose
26.10 - Effect of Ballot Measure 37 (ORS 197.352)
26.11 - Effect of Ballot Measure 49
27. - LUBA Procedures/Rules
27.1 - Generally
27.2 - Perfecting an Appeal
27.2.1 - Generally
27.2.2 - Notice of Intent to Appeal
27.2.3 - Payment of Fee and Deposit for Costs
27.3 - Record
27.3.1 - Generally
27.3.2 - Content/Form
27.3.3 - Objections to
27.3.4 - Settling the Record
27.4 - Petition for Review
27.4.1 - Generally
27.4.2 - Cross-Petition
27.5 - Briefs
27.5.1 - Generally
27.5.2 - Respondent's
27.5.3 - State Agency
27.5.4 - Amicus
27.5.5 - Reply
27.6 - Evidentiary Hearings
27.6.1 - Generally
27.6.2 - Grounds for
27.6.3 - Motion for
27.6.4 - Procedures
27.6.5 - Depositions
27.7 - Parties
27.7.1 - Petitioner
27.7.2 - Respondent
27.7.3 - Intervenor/ Participant
27.7.4 - Amicus
27.7.5 - Representation
27.8 - Consolidation
27.9 - Stays
27.9.1 - Generally
27.9.2 - Colorable Claim of Error
27.9.3 - Irreparable Injury
27.9.4 - Procedures
27.9.5 - Order
27.10 - Time Limits
27.10.1 - Notice of Intent to Appeal
27.10.2 - Record Objections
27.10.3 - Petition for Review
27.10.4 - Final Opinion
27.10.5 - Other Documents
27.10.6 - Extensions
27.10.7 - Failure to Comply
27.11 - Service
27.11.1 - Notice of Intent to Appeal
27.11.2 - Intervention/ Participation
27.11.3 - Record and Objections
27.11.4 - Other Documents
27.11.5 - Failure to Comply
27.12 - Costs
27.12.1 - Prevailing Party
27.12.2 - Amount
27.12.3 - Petition for Review Not Filed
27.12.4 - Generally
27.13 - Attorney Fees
27.14 - Official Notice
27.15 - Transfers to Circuit Court
27.16 - Withdrawal of Decision
27.17 - Mediation
28. - LUBA Scope of Review
28.1 - Generally
28.2 - Denials
28.3 - Goal Exceptions
28.4 - Post-acknowledgment Amendments
28.5 - Legislative Decisions
28.6 - Waiver of Issues
28.6.1 - Failure to Raise in Prior LUBA Appeal
28.6.2 - Failure to Raise in Local Proceedings
28.6.3 - Issues Conclusively Resolved in Prior Appeal
28.6.4 - Failure to Raise in Local Appeal
28.7 - After Remand by Court
28.8 - Grounds for Reversal/Remand
28.8.1 - Generally
28.8.2 - Lack of Jurisdiction
28.8.3 - Unconstitutionality
28.8.4 - Procedural Errors
28.8.5 - Noncompliance with Applicable Law
28.8.6 - Inadequate Findings
28.8.7 - Unsupported by Substantial Evidence
28.8.8 - Harmless Error
28.8.9 - Other
28.9 - State Agency Decisions
28.10 - Limited Land Use Decisions
28.11 - Effect of Ballot Measure 37 Waiver (ORS 197.352)
28.12 - Effect of Ballot Measure 49 (ORS 195.300 to 195.336)
29. - Comprehensive Plans
29.1 - Adoption
29.1.1 - Generally
29.1.2 - Procedure
29.1.3 - Standards
29.2 - Amendment
29.2.1 - Generally
29.2.2 - Text Amendment: Procedure
29.2.3 - Text Amendment: Standards
29.2.4 - Map Amendment: Procedure
29.2.5 - Map Amendment: Standards
29.3 - Applicability
29.3.1 - Generally
29.3.2 - As Decision Criteria
29.3.3 - Effect of Acknowledgment
29.3.4 - Subarea Plans
29.4 - Interpretation
30. - Zoning Ordinances
30.1 - Adoption
30.1.1 - Generally
30.1.2 - Procedure
30.1.3 - Standards
30.2 - Amendment
30.2.1 - Generally
30.2.2 - Text Amendment: Procedure
30.2.3 - Text Amendment: Standards
30.2.4 - Map Amendment: Procedure
30.2.5 - Map Amendment: Standards
30.3 - Applicability
30.4 - Interpretation
31. - Permits
31.1 - Approval Standards
31.1.1 - Generally
31.1.2 - Application Requirements
31.1.3 - Standards/Criteria
31.1.4 - Use of Conditions
31.1.5 - Statutory Requirement for
31.2 - Types
31.2.1 - Building
31.2.2 - Conditional Use
31.2.3 - Design Review
31.2.4 - Other
31.3 - Particular Uses
31.3.1 - Airports
31.3.2 - Farm Dwellings
31.3.3 - Forest Dwellings
31.3.4 - Mineral and Aggregate
31.3.5 - Nonresource Dwellings
31.3.6 - Power Generators
31.3.7 - Shopping Centers
31.3.8 - Transmission Towers/Lines
31.3.9 - Waste Disposal Facilities
31.3.10 - Home Occupations
31.3.11 - Erosion Control Structures
31.3.12 - Destination Resorts
31.3.13 - Golf Courses
31.3.14 - Churches
31.3.15 - Schools
31.3.16 - Manufactured Homes
31.3.17 - Firearms Training Facilities
31.3.18 - Wineries
31.3.19 - Farm Stands
31.3.20 - Needed Housing
32. - Planned Unit Developments
32.1 - Procedures
32.2 - Standards
33. - Land Divisions
33.1 - Subdivisions
33.2 - Partitions
33.3 - Lot Line Adjustments
33.4 - Generally
34. - Variances
35. - Moratoria
36. - Nonconforming Uses
36.1 - Generally
36.2 - Definition
36.3 - Determination of Existence
36.4 - Abandonment/Interruption
36.5 - Alteration/Change
36.6 - Expansion
36.7 - Restoration/Replacement
36.8 - Regulation
37. - Vested Rights
38. - State Agencies
38.1 - Generally
38.2 - Permits
38.3 - Local Gov't Compatibility Determinations
39. - Boundary Changes
39.1 - Generally
39.2 - Incorporation/Formation
39.3 - Annexation
40. - Wetlands
41. - Urban Renewal Plans
42. - Wrecking Certificates
43. - Special Districts
44. - Marginal Lands
45. - Conditions of Approval
45.1 - Generally
45.2 - Authority to Impose
45.3 - Exactions
45.4 - Consents to Annexation
45.5 - Waivers of Remonstrance
46. - Outdoor Mass Gatherings
47. - Ballot Measure 37 (ORS 197.352)
47.1 - Generally
47.2 - Local Waivers
47.3 - State Waivers
48. - Ballot Measure 49
48.1 - Generally
49. - Marijuana Laws
Showing 100 results
Citizens for Renewables v. City of North Bend, LUBA No 2019-120 (Jan 5, 2021) (2021)
Summary:
While the horizontal directional drilling (HDD) process for installing a pipeline compresses the distinct stages of open trenching into a more unified process, the HDD process still requires removal of soil under the seafloor, i.e., an activity that functionally and in all other material ways constitutes “dredging,” and HDD is therefore a regulated “activity” for purposes of Goal 16.
Citizens for Renewables v. City of North Bend, LUBA No 2019-120 (Jan 5, 2021) (2021)
Summary:
While OAR 660-037-0080(3)(b)(A) includes a concurrency requirement, i.e., that subordinate non-water-dependent uses be constructed no earlier than the water-dependent uses they serve, it does not include a co-location requirement, i.e., that subordinate non-water-dependent uses be constructed on the same site as the water-dependent uses they serve.
Citizens for Renewables v. City of North Bend, LUBA No 2019-120 (Jan 5, 2021) (2021)
Summary:
Under the definition of “conserve” in the statewide planning goals, and in the context of Goal 16, the focus is on the future or long-term preservation of aquatic resources, and temporary or short-term impacts which dissipate and have no consequences for the future availability of aquatic resources are not inconsistent with the obligation to conserve those resources.
Russell v. Lane County, LUBA No 2020-072 (Jan 8, 2021) (2021)
Summary:
ORS 215.780(2)(d)(A) prohibits new dwellings on any substandard-sized parcels in forest zones created pursuant to ORS 215.780(2)(d), including any “remainder parcels,” in spite of the inartful language in ORS 215.780(6)(a) referring to “the newly created parcel,” in the singular.
Hollander Hospitality v. City of Astoria, LUBA No 2020-088 (Jan 15, 2021) (2021)
Summary:
Where two local code provisions provide that the local government “may” grant a permit extension if (1) “[t]he applicant has demonstrated that progress has been made on the project since the original decision on the permit,” and (2) “[i]n lieu of compliance with [the first provision], the applicant may demonstrate that poor economic conditions exist in the market that would advise against proceeding with the project,” the governing body misconstrues the provisions in denying an extension request based on its conclusion that the applicant could have begun the project before economic conditions changed.
Beaverton Business Owners, LLC v. City of Beaverton, LUBA No 2020-069 (Jan 21, 2021) (2021)
Summary:
Where a local code defines “principal use” to mean “[t]he main or primary purpose of which land or a structure is designed, arranged or intended or for which it is occupied or maintained,” the local governing body does not err in concluding that a use which is temporary as a result of a condition of approval is nonetheless the principal use.
Landwatch Lane County v. Lane County, LUBA No 2020-030 (Jan 21, 2021) (2021)
Summary:
Where a comprehensive plan provision provides that “[ODFW] recommendations on overall residential density for protection of big game shall be used to determine the allowable number of residential units within regions of the County” and that “[a]ny density above that limit shall be considered to conflict with Goal 5 and will be allowed only after resolution in accordance with OAR 660-16-000,” the county’s failure to take the step of identifying regions and basing zoning by region on either overall residential densities or ODFW minimum parcel size recommendations does not mean that the county is absolved from conducting an ESEE analysis for individual proposals that exceed ODFW’s recommended residential densities, even where the county has adopted a minimum parcel size for new land divisions and siting and clustering standards for new dwellings.
Suess v. City of Port Orford, LUBA No 2020-076 (Jan 22, 2021) (2021)
Summary:
Where a local code provision authorizes the planning commission to extend a conditional use permit “for an additional period not to exceed one year,” the local governing body does not err by interpreting the provision as authorizing multiple one-year extensions.
Diephuis v. City of Beaverton, LUBA No 2020-101 (Jan 25, 2021) (2021)
Summary:
A conclusion that it is not practicable for an applicant to commence development within the time allowed by a decision for reasons that are “beyond the reasonable control of the applicant” is not supported by substantial evidence where the applicant’s delay results merely from the applicant’s financial difficulties and the resulting internal prioritization of investments, considering competing customer needs.
Landwatch Lane County v. Lane County, LUBA No 2020-086 (Jan 25, 2021) (2021)
Summary:
Where a local subdivision ordinance defines “minor subdivision” to include subdivisions located inside the urbanizing area that, “in the judgment of the Planning Commission,” meet certain criteria, and where the ordinance exempts from its applicability subdivisions located outside the urbanizing area that would be minor subdivisions if located inside the urbanizing area, a hearings officer does not err in concluding that a landowner need not apply for a planning commission determination of whether a proposed subdivision located outside the urbanizing area would be a minor subdivision if located inside the urbanizing area in order to determine whether the proposed subdivision is exempt from the ordinance.
Kine v. Deschutes County, LUBA No 2018-130 (Jan 29, 2021) (2021)
Summary:
Where a local code provision defines “lot of record” to include lots or parcels created “[b]y the subdividing or partitioning of adjacent or surrounding land, leaving a remainder lot or parcel,” a local governing body does not err in concluding that, even if a subdivision plat in fact creates more than one remainder parcel, only one remainder parcel can be recognized as a lot of record, even where the subdivision plat creates noncontiguous remainder parcels.
Warning: Names differ between headnote 'kine kine properties v deschutes' & case: kine v deschutes
Chapman Point HOA et al v. City of Cannon Beach, LUBA Nos 2020-043/044 (Mar 2, 2021) (2021)
Summary:
A governing body does not err by concluding that a foredune management plan which requires the revegetation of graded areas protects “natural” areas, even where the foredune management plan allows the planting of non-native vegetation.
Crowley v. City of Hood River, LUBA No 2019-054 (Mar 5, 2021) (2021)
Summary:
Where a comprehensive plan policy provides that “[e]xisting park sites will be protected from incompatible uses,” the local government is as a matter of law prohibited from rezoning a portion of land currently occupied by a park to allow for high-density residential development.
Oregon Coast Alliance et al v. City of Wheeler, LUBA Nos 2020-064/065 (Mar 9, 2021) (2021)
Summary:
A governing body does not err by concluding that there is a “need” for certain developments if the developments will provide tax revenue and utilize vacant land, even if financial benefits and the utilization of vacant land are not necessities.
Kulongoski v. City of Portland, LUBA No 2021-004 (July 8, 2021) (2021)
Summary:
Where the local government’s code allows the decision maker to consider “modification of site-related development standards” if the proposed modification “better meets” design guidelines than development under the standards, the decision maker improperly construes the code to compare the existing non-compliant structure with the proposed non-compliant structure, because the comparison required by the code is between compliant development and the proposed non-compliant development.
Roberts et al v. City of Cannon Beach, LUBA No 2020-116 (July 23, 2021) (2021)
Summary:
ORS 227.175(4)(c), which provides that “[a] city may not condition an application for a housing development on a reduction in density,” is not limited to applications that also seek zone changes or discretionary “permits” for purposes of ORS 227.175(1) and (2).
Roberts et al v. City of Cannon Beach, LUBA No 2020-116 (July 23, 2021) (2021)
Summary:
ORS 227.175(4)(c), which provides that “[a] city may not condition an application for a housing development on a reduction in density,” does not prohibit a city from applying clear and objective standards that may incidentally reduce floor area below the maximum floor area that is allowed in the relevant zone. The legislature intended to prevent cities from reducing housing density on an ad hoc basis by applying subjective standards to applications for housing developments.
Community Participation Organization 4M et al v. Washington County, LUBA No 2020-110 (Sept 29, 2021) (2021)
Summary:
The legal standard that applies to determine whether a provision satisfies the clear and objective requirement in ORS 137.307(4) also applies to determine whether a provision satisfies the clear and objective standard in OAR 660-023-0050(2).
Warning: Names differ between headnote 'cpo 4m v washington' & case: participation 4m v washington
Oregon Shores Conservation Coalition v. Coos County, 81 Or LUBA 839 (2020)
Summary:
LUBA will conclude that a decision does not include an implicit interpretation that resolves an apparent tension between a comprehensive plan policy and a local code provision where nothing cited to LUBA in the findings indicates that the local government recognized, much less attempted to resolve, the tension.
Matthews v. Lane County, 81 Or LUBA 757 (2020)
Summary:
LUBA reviews interpretations of conditions of approval to determine whether they are correct.
Matthews v. Lane County, 81 Or LUBA 757 (2020)
Summary:
Where a condition of approval for a nonfarm dwelling provides that “[t]he proposed dwelling site shall be located as represented by the applicant’s written statements and approved site plan” and that “[a]ny deviation from this representation shall require an application for a modification of conditions with the applicable fees subject to the Planning Director’s discretion,” a hearings official misinterprets that condition by concluding that it provides the director discretion regarding whether a modification application will be required; instead, that condition provides the director discretion to review and issue decisions on modification applications.
Home Builders Assoc. v. City of Eugene, 81 Or LUBA 764 (2020)
Summary:
Because maximum lot standards regulate how an accessory dwelling can be sited on a lot (e.g., interior versus attached or detached), as with setbacks, and not whether one can be sited at all, as with minimum lot size standards and density limitations, such regulations relate to “siting” for purposes of ORS 197.312(5)(a).
Home Builders Assoc. v. City of Eugene, 81 Or LUBA 764 (2020)
Summary:
Where a petitioner challenges a local government’s justifications for a 50 percent maximum lot coverage standard, but where there is no evidence in the record or argument from the petitioner that the standard is not “within the bounds of reason,” or is “extreme,” “excessive,” or not “moderate,” the petitioner has not established that the standard is not “reasonable” for purposes of ORS 197.312(5)(a).
Home Builders Assoc. v. City of Eugene, 81 Or LUBA 764 (2020)
Summary:
Where a petitioner argues that local code provisions regulating the size of accessory dwellings differently in different areas of the city based on lot size are not reasonable because (1) they could make conversion of existing single-family dwellings difficult and operate to discourage conversions, (2) lot size is not related to the size of a primary dwelling, and (3) the provisions allow potentially larger accessory dwellings on smaller lots in some zones and limit the size of accessory dwellings on larger lots in other zones, but where the petitioner has not established that the provisions “conflict[] with reason” or are “absurd,” “ridiculous,” or “extreme,” the petitioner has not established that the provisions are not “reasonable” for purposes of ORS 197.312(5)(a).
Home Builders Assoc. v. City of Eugene, 81 Or LUBA 764 (2020)
Summary:
That a sloped setback and building height requirement for attached accessory dwellings may make it more expensive to convert an existing floor area into an attached accessory dwelling does not establish that such a consequence makes the requirement not “reasonable” for purposes of ORS 197.312(5)(a).
Home Builders Assoc. v. City of Eugene, 81 Or LUBA 764 (2020)
Summary:
Where a local government adopts a statutory definition into its land use regulations, the local definition cannot, on its face, violate the statute from which it is taken or any other statute.
Anderson v. Yamhill County, 81 Or LUBA 618 (2020)
Summary:
Where a local code provision requires that site design review be based upon consideration of the “[c]haracteristics of adjoining and surrounding uses,” the local government does not err by characterizing adjoining and surrounding uses simply as farm uses, even where the adjoining and surrounding lands contain dwellings, where the lands are zoned for farm and forest uses, where the dwellings are allowed in conjunction with farm and forest uses, and where the purpose of the zones and the comprehensive plan is to protect and conserve farm and forest lands for farm and forest uses.
Oregon Coast Alliance v. Tillamook County, 81 Or LUBA 633 (2020)
Summary:
Where a local code provision allows “public utility facilities, including substations and transmission lines,” in a particular zone, the governing body does not err by concluding that a utility facility is “public” so long as it is necessary for the public health, safety, and welfare, even if it is not publicly owned; that a utility facility benefits the public health, safety, and welfare by increasing the overall capacity and redundancy within the larger utility system; and that a utility facility is “public” even if it benefits the public generally and not just residents of the local community.
Oregon Coast Alliance v. Tillamook County, 81 Or LUBA 633 (2020)
Summary:
Where a local code provides that a use not listed in a particular zone may be permitted in that zone if it is “of the same general character, or has similar impacts on nearby properties, as do other uses permitted in the zone,” the governing body does not err by concluding that a particular use satisfies that criterion even if it has lesser negative impacts than permitted uses.
Crowley v. City of Hood River, 81 Or LUBA 490 (2020)
Summary:
A local government need not interpret the term “protect” the same way in the context of a statewide planning goal that does not protect a specific, unique natural resource or specific recreation area that it does in the context of a goal that does protect those things, even where the definitions of “protect” in the latter goal and in the local government’s comprehensive plan are identical.
Mattson v. Lane County, 81 Or LUBA 526 (2020)
Summary:
Where the local code provides that certain applications (1) must be “submitted on a form provided by the [Planning] Director,” (2) “must be reviewed” pursuant to Type II procedures, (3) “may be reviewed” pursuant to Type I procedures in certain circumstances, and (3) “shall not be considered accepted solely because of having been received,” the planning director has discretion to reject an application filed on an incorrect form.
Oregon Shores Conservation Coalition v. City of North Bend, 81 Or LUBA 534 (2020)
Summary:
Where a comprehensive plan provision allows “minor navigational improvements” in a particular zone, which it defines as “alterations necessary to provide water access to existing or permitted uses in conservation management units,” an interpretation of that provision as not requiring that the use for which the alteration is needed and the alteration itself be located in the same zone is consistent with the provision’s express language; however, an interpretation of that provision as allowing alterations that are needed for a use that is not located in a “conservation management unit” is inconsistent the provision’s express language.
Oregon Shores Conservation Coalition v. City of North Bend, 81 Or LUBA 534 (2020)
Summary:
Where a comprehensive plan management objective allows “a limited boat dock for transient recreation craft tie-up” in a particular zone, and the uses and activities matrix for the zone allows “docks” without limitation, but a different comprehensive plan provision states that uses and activities matrices are “subordinate” to management objectives and that allowed uses and activities must be “consistent” with the management objectives, a local government errs by allowing nonlimited boat docks in the zone.
Oregon Shores Conservation Coalition v. City of North Bend, 81 Or LUBA 534 (2020)
Summary:
Where a local code provision requires that a “declaration of anticipated noise levels” be attached to certain land use approvals and that applicants incorporate noise abatement strategies where noise levels are anticipated to exceed a certain threshold, the word “declaration” anticipates more than a statement from the applicant’s attorney, without supporting documents or studies, and a reasonable person would not rely on such statements alone to conclude that the noise threshold is not exceeded.
Wachal v. Linn County, 81 Or LUBA 561 (2020)
Summary:
In considering an application for a relative farm help dwelling, a local government is not limited to considering the commercial farming operation occurring on the property on the date the application is filed, and the local government does not err by considering whether a new crop planted after the application is filed, either alone or in combination with the existing operation, is an “existing commercial farming operation” within the meaning of OAR 660-033-0130(9)(a).
Tugaw v. Jackson County, 81 Or LUBA 458 (2020)
Summary:
ORS 215.750 and OAR 660-006-0005(5) allow a county to approve a forest template dwelling if, after applying a 160-acre template centered on the subject property, at least seven other “lots or parcels that existed on January 1, 1993, are” within the 160-acre area. A hearings officer’s interpretation of a local code provision implementing the statute and the rule to conclude that an applicant failed to meet the seven-lot requirement because two parcels that existed on January 1, 1993, were later reconfigured pursuant to a major partition is inconsistent with the statute and the rule because the administrative rule history of the rule indicates that LCDC did not intend to prohibit an applicant from relying on a post-January 1, 1993 reconfiguration of a parcel so long as “the effect of” the later reconfiguration was not “to qualify a lot, parcel or tract for the siting of a dwelling.”
1000 Friends of Oregon v. Linn County, 81 Or LUBA 338 (2020)
Summary:
Where comprehensive plan provisions provide, using mandatory language, that certain resource plan and zoning designations shall be used to conserve or protect fish and wildlife habitat from conflicting uses and that land use proposals that have undesirable impacts on those resources shall be reviewed during the plan and zone amendment processes, a local governing body errs in interpreting those provisions to conclude that it may apply nonresource plan and zoning designations to property mapped as fish and wildlife habitat and that any impacts may be evaluated and, if necessary, mitigated during subsequent review of development proposals.
Campbell v. Columbia County, 81 Or LUBA 385 (2020)
Summary:
Where a county code provision provides that a nonconforming use may not be resumed if there is a “discontinuance” for a period greater than one year, the county board of commissioners does not err in interpreting the undefined term “discontinuance” by resorting to the dictionary definition and in applying that interpretation to conclude that a property owner who is actively pursuing permits to complete repairs and upgrades that are required for health and safety reasons, and who is actively responding to appeals of those permits, has not discontinued a nonconforming use. Such an interpretation and application of the term “discontinuance” in the county code provision is not contrary to the term “interruption” in ORS 215.130(7)(a).
Oregon Coast Alliance v. City of Bandon, 81 Or LUBA 285 (2020)
Summary:
Where one local code provision requires that “the characteristics of the site [be] suitable for the proposed use considering size, shape, location, topography and natural features”; and where another local code provision requires that development plans “be reviewed to assess the possible presence of any geologic hazard” and provides that, if a geologic hazard is suspected, the developer must submit a report “which satisfactorily evaluates the degree of hazard present and recommends appropriate precautions to avoid endangering life and property and minimize erosion,” and provides that “[t]he burden of proof is on the landowner to show that it is safe to build”; LUBA will defer to the governing body’s interpretation that an applicant’s geologic report related to the “safe to build” criterion, rather than the “suitability” criterion.
Beaverton Business Owners, LLC v. City of Beaverton, 81 Or LUBA 224 (2020)
Summary:
Where a local code provision requires that uses be conducted “wholly within an enclosed structure”; where the local code defines “structure” as both “[a]nything which is constructed, erected or built and located on or under the ground, or attached to something fixed to the ground,” and “[a] walled and roofed building including a gas or liquid storage tank that is principally above ground”; where the first definition was in effect when the enclosed structure requirement was first enacted; and where the second definition was enacted as part of an ordinance that related to compliance with FEMA’s requirements to participate in the National Flood Insurance Program, LUBA will affirm a local governing body’s interpretation of the enclosed structure requirement, relying on the first definition of “structure,” to allow a use that is surrounded by building walls, retaining walls, and fences.
Beaverton Business Owners, LLC v. City of Beaverton, 81 Or LUBA 224 (2020)
Summary:
Where a local design guideline provides that “[p]rimary building entrances should be oriented toward and located in close proximity to public streets and public street intersections” and that “[p]roperty size, shape and topographical conditions should also be considered,” LUBA will affirm a local governing body’s interpretation of that guideline to allow the primary entrance to a proposed development to be located on the opposite side of the property and oriented away from public streets where the primary entrance would nevertheless be “in close proximity to” those public streets and connected to those public streets with multiple pedestrian connections, and where the triangular shape of the property and a partially adjacent high-speed on-ramp to a highway support the applicant’s choice to cluster the proposed development toward the public streets and provide a primary entrance on the opposite side of the property.
Tarr v. Multnomah County, 81 Or LUBA 242 (2020)
Summary:
Where a local code provision requires that a proposed conditional use be “consistent with the character of the area,” and where nothing in the code defines or describes the relevant study area for purposes of the provision, a local government does not err by expanding the scope of the study area beyond that described in the application.
Tarr v. Multnomah County, 81 Or LUBA 242 (2020)
Summary:
Where a local code allows community service and residential uses in the same zone, a local government does not err by concluding that a proposed community service use is “consistent with the character of the area,” even though it would generate more traffic or noise impacts than a typical residential use, where almost any community service use would generate more traffic and noise impacts than a typical residential use.
Mumper v. City of Salem, 81 Or LUBA 152 (2020)
Summary:
Where a local code provision provides that a refinement plan for property within a master plan area must be consistent with the master plan; where the master plan contains an executive summary, a listing of principles, a discussion section after each principle heading, other sections discussing site features and infrastructure strategy, a variety of graphics, and several other exhibits and attachments; where another local code provision provides that the intent of the master plan is to identify the “goals and policies” for development within the master plan area, and where other local code provisions suggest that “goals” and “policies” are different things, a governing body errs in concluding that merely furthering the principles is sufficient to establish consistency with the master plan and in failing to address provisions of the master plan dictating the strategies that development is required to use in order to actualize the principles—that is, in concluding that a refinement plan need only be consistent with the principles as summarized by their headings.
Mumper v. City of Salem, 81 Or LUBA 152 (2020)
Summary:
Where a local code provision authorizes the adoption of refinement plans for areas not less than 40 acres in size, where another local code provision authorizes an adjustment of a development standard if the purpose underlying the standard is “equally or better met” by the proposed development, where the 40-acre standard is intended to avoid piecemeal development, where an applicant proposes a 14-acre refinement plan for an area adjacent to an existing refinement plan area, and where the proposed and existing refinement plan areas will be under common ownership and have physically connected elements, a local government does not err in concluding that the 14-acre refinement plan “equally or better” meets the 40-acre standard and, therefore, may be granted an adjustment.
Kamps-Hughes v. City of Eugene, 81 Or LUBA 193 (2020)
Summary:
ORS 197.312(5)(a) does not provide an outright, unqualified entitlement to develop an accessory dwelling unit (ADU) on every property with a single-family dwelling; instead, that statute provides local governments some regulatory discretion in regulating ADUs that could have the effect of prohibiting an ADU on a particular property, so long as the regulation is reasonable and related to “siting and design.”
Kamps-Hughes v. City of Eugene, 81 Or LUBA 193 (2020)
Summary:
For purposes of ORS 197.312(5)(a), which requires cities to allow accessory dwelling units (ADUs) “subject to reasonable local regulations relating to siting and design,” the word “siting” describes a regulation that allows the city to specify the location of an ADU on a site, and it does not allow the city to regulate where in each of the city’s residential zones ADUs are allowed based on factors such as traffic, livability, and existing density.
Kamps-Hughes v. City of Eugene, 81 Or LUBA 193 (2020)
Summary:
Under ORS 197.312(5)(a), which requires cities to allow accessory dwelling units (ADUs) “subject to reasonable local regulations relating to siting and design,” while regulations prohibiting ADUs on alley access lots, requiring a minimum lot size for ADUs, requiring minimum lot dimensions for ADUs, and limiting ADU occupancy do not relate to “siting” or “design,” regulations limiting the percentage of total lot area that can be vehicle use areas, limiting the number of garages or covered parking areas, limiting the dimensions of and requiring minimum setbacks for garages, and limiting driveway widths do relate to “siting” and “design.”
Carson Property LUBA Appeal, Inc. v. City of Corvallis, 81 Or LUBA 175 (2020)
Summary:
Where comprehensive plan and local code provisions provide that the comprehensive plan may be amended only when “[t]here is a demonstrated public need for the change,” and where another comprehensive plan provision states that the desired land use pattern in the urban growth boundary includes “[n]eighborhoods with a mix of uses, diversity of housing types, pedestrian scale, a defined center and shared public areas,” the governing body does not err in concluding that that there is a “public need” to redesignate the subject property to High Density Residential (HDR) because the property is in a neighborhood of low- and medium-density housing and because introducing HDR zoning into the area will allow higher-density housing in a new location within the jurisdiction and potentially increase housing supply and diversity, even where the jurisdiction’s acknowledged Buildable Lands Inventory and other, more recent data indicate that there is no deficit of HDR land in the jurisdiction.
Kimbrell v. City of Lincoln City, 81 Or LUBA 10 (2020)
Summary:
Where a city code provision provides that “[t]he footprint of any other new structure or any horizontal addition requiring at least one footing in ocean bluff areas must be set back from the bluff” a certain distance; where the documents identified by the provision as the resources the city is to consult in order to identify the location of the bluff edge are documents reflecting historic conditions; where grading is not listed as exempt from the requirements of the chapter; where the code does not support the conclusion that the city may, in evaluating the required setback, sever the construction of a structure from the associated grading proposed as site preparation; where the material that the code requires be included in a geological hazard report supports the interpretation that the bluff edge is to be determined based upon existing conditions; and where the code allows variances to be considered to reduce the building setback if the variance helps lessen the risk of erosion or other hazard, an interpretation of the provision as providing that permitted development, such as grading and excavation, can occur prior to establishing the location of the bluff edge is inconsistent with the provision’s express language and context for purposes of ORS 197.829(1).
York v. Clackamas County, 81 Or LUBA 20 (2020)
Summary:
For purposes of a local code provision requiring that a proposed conditional use not “alter the character of the surrounding area in a manner that substantially limits, impairs, or precludes the use of surrounding properties for the primary uses allowed in the zoning district(s) in which surrounding properties are located,” the primary use allowed in the Rural Residential Farm Forest 5-Acre zone is the use and occupancy of a dwelling structure, and the local government does not misinterpret the provision in finding that passing by the proposed conditional use on the way to a residence does not limit that use.
Central Oregon Landwatch v. Deschutes County, 81 Or LUBA 75 (2020)
Summary:
A lot or parcel is not ineligible for a lot of record dwelling under ORS 215.705(1)(a) because it was transferred from a pre-1985 owner to a qualifying relative or business entity under ORS 215.705(6) by deed when the pre-1985 owner was still alive, i.e., an inter vivos transfer, rather than by devise or intestate succession after their death.
Central Oregon Landwatch v. Deschutes County, 81 Or LUBA 75 (2020)
Summary:
A family trust that the record shows was formed for the purpose of managing and eventually disposing of a pre-1985 owner’s assets, including real estate, to family members may qualify as a “business entity owned by any one or combination of these family members,” within the meaning of ORS 215.705(6), and, therefore, an “owner” of a lot or parcel, within the meaning of ORS 215.705(1)(a), for purposes of establishing a lot of record dwelling.
Central Oregon Landwatch v. Deschutes County, 81 Or LUBA 75 (2020)
Summary:
A lot or parcel is not ineligible for a lot of record dwelling under ORS 215.705(1)(a) because it was transferred from a pre-1985 owner first to a family trust and then to a qualifying relative under ORS 215.705(6) as part of an estate plan; nothing in ORS 215.705(1)(a) limits the number of transfers of an otherwise qualifying parcel to a single transfer.
Central Oregon Landwatch v. Deschutes County, 81 Or LUBA 75 (2020)
Summary:
Two parcels are not “under the same ownership” and, therefore, not a “tract,” within the meaning of ORS 215.010(2), where one is owned by a person individually and the other is owned by a trust, with the same person serving as trustee.
Central Oregon Landwatch v. Deschutes County, 81 Or LUBA 75 (2020)
Summary:
A parcel “include[s] a dwelling,” making other parcels in the same tract ineligible for a lot of record dwelling under ORS 215.705(1)(b), where a lot of record dwelling has been approved on that parcel, even if construction of it has not yet started.
M & T Partners, Inc. et al v. City of Salem, 80 Or LUBA 221 (2019)
Summary:
To the extent that LUBA’s holding in Perry v. Yamhill County, 26 Or LUBA 73, 80, aff’d, 125 Or App 588, 865 P2d 1344 (1993), that the reasoning in Clark v. Jackson County, 313 Or 508, 836 P2d 710 (1992), extends to a local government’s interpretation of a prior land use decision, was correct, it was superseded by ORS 197.829(1), which requires LUBA to affirm “a local government’s interpretation of its comprehensive plan and land use regulations” but does not require LUBA to affirm a local government’s interpretation of a prior land use decision, findings adopted in support thereof, or conditions of approval attached thereto, which LUBA reviews under ORS 197.835(9)(a)(D) to determine whether the local government “[i]mproperly construed the applicable law.”
VanSickle v. Klamath County, 80 Or LUBA 241 (2019)
Summary:
Where a significant resource overlay zone provision requires that (1) resource sites not be altered or impacted to a degree that destroys their significance, (2) the proposed development not result in the loss of habitat for threatened or endangered species, (3) all feasible alternatives to the development that would not result in a substantial adverse impact on identified resource values be considered and rejected, (4) the development be sited on the property in such a manner that minimizes adverse impacts on identified resources, and (5) documentation be provided regarding requirements for state or federal permits or licenses and that appropriate resource management agencies have reviewed the development proposal against their plans, policies, and programs, the local government does not err in concluding that that provision applies at the development stage rather than the PAPA stage.
Central Oregon Landwatch v. Deschutes County, 80 Or LUBA 252 (2019)
Summary:
Although the holding in Beaver State Sand and Gravel vs. Douglas County, 187 Or App 241, 65 P3d 1123 (2003), determined that ORS 215.298(2) prohibits surface mining on EFU-zoned lands unless the property is included on a Goal 5 inventory of significant aggregate resources, nothing in OAR 660-023-0180 prohibits a local government from otherwise maintaining a “Non-Significant Mining Mineral and Aggregate Inventory,” adding properties to that inventory, or allowing surface mining on properties included on that inventory pursuant to local code provisions regulating surface mining, and a local government is not required to apply any rules implementing Goal 5 to its decision to add property to that inventory.
Bohan v. City of Portland, 80 Or LUBA 263 (2019)
Summary:
Where a local code provision requires that a minimum of 250 square feet of “outdoor area” be provided for each residential lot and specifically states that the outdoor area may include “decking” and a “covered patio,” as long as that covered patio is not “fully enclosed,” the local government does not err by concluding that a covered deck that is attached to the dwelling, but not enclosed, can satisfy the minimum outdoor area requirement.
Chang v. Clackamas County, 80 Or LUBA 321 (2019)
Summary:
Where a local code provision generally prohibits development and grading in “areas of land movement,” LUBA will affirm a hearings officer’s interpretation of that provision to prohibit development and grading in “an area where a land slide or some other earth movement has already occurred—not an area where such activity could occur.”
Chang v. Clackamas County, 80 Or LUBA 321 (2019)
Summary:
A local government errs by finding that compliance with a local code provision prohibiting diversion of storm water into areas with steep slopes and “areas of land movement, slump or earth flow, and mud or debris flow” is satisfied by compliance with a separate local code provision requiring development to provide “[p]ositive drainage and adequate conveyance of surface water * * * from roofs, footings, foundations, and other impervious or near-impervious surfaces to an appropriate discharge point.”
Simons Investment Properties, LLC v. City of Eugene, 80 Or LUBA 458 (2019)
Summary:
The planning commission’s conclusion that the subject properties are subject to “site review requirements” is not supported by anything in the text of the Old Code, Ordinance 20224, or the New Code.
Hulme v. City of Eugene, 80 Or LUBA 488 (2019)
Summary:
In the context of an application to construct a 94-unit apartment complex, where a local code provision defines “net density” to mean “the number of dwelling units per acre of land in actual residential use and reserved for the exclusive use of the residents in the development, such as common open space or recreation facilities,” while a maintenance building and internal parking circulation areas are properly included in the net density calculation, a leasing office should be excluded from the acreage used to calculate net density.
Crowley v. City of Hood River, 79 Or LUBA 77 (2019)
Summary:
Where the Court of Appeals determines that LUBA’s decision was “unlawful in substance” pursuant to ORS 197.850(9)(a) because LUBA affirmed the city’s interpretation of Goal 8, Policy 1, and according to the court, the city’s interpretation of Goal 8, Policy 1 is not affirmable under ORS 197.829(1) because the city’s interpretation does not “plausibly account for the text and context of the policy,” the appropriate disposition according to OAR 661-010-0071(2)(d) is for LUBA to remand the decision to the city for further proceedings, specifically for the city to adopt a sustainable interpretation of Goal 8, Policy 1, and apply that policy, as interpreted to the application before it.
York et al v. Clackamas County, 79 Or LUBA 278 (2019)
Summary:
Where a local code provision prohibits uses that “alter the character of the surrounding area in a manner that substantially limits, impairs, or precludes the use of surrounding properties,” a hearings officer errs in reducing the inquiry into a single inquiry into whether the proposed use makes the use of nearby properties “substantially worse,” since the words “limit” and “impair’ have different meanings and since, where a local code uses two different terms in the same provision, it is presumed that the enacting body intends two different meanings.
York et al v. Clackamas County, 79 Or LUBA 278 (2019)
Summary:
Where a local code provision requires a finding that a proposed use “will not significantly increase fire hazard or significantly increase fire suppression costs or significantly increase risks to fire suppression personnel,” the proper comparison is between the proposed use and the pre-existing use, not between the proposed use and typical uses of the same type.
Sky Lakes Medical Center, Inc. v. City of Klamath Falls, 79 Or LUBA 490 (2019)
Summary:
Where the predominant use of a proposed facility controls whether it is permitted in a zone, a local government does not err in concluding that the allocation of two-thirds of the physical space in a building to office uses makes the office use the predominant use of the building, even where the primary purpose of the office uses is to facilitate other uses in the building which are not allowed in the underlying zone.
Kamps-Hughes v. City of Eugene, 79 Or LUBA 500 (2019)
Summary:
The fact that a proposed second dwelling would have a smaller footprint, less square footage, and fewer bedrooms than an existing dwelling on the same lot is by itself insufficient to establish that the second dwelling is “accessory to” the existing dwelling for purposes of ORS 197.312(5).
Kamps-Hughes v. City of Eugene, 79 Or LUBA 500 (2019)
Summary:
The fact that a proposed second dwelling would be located on the same lot as an existing dwelling is sufficient to establish that the second dwelling is “used in connection with” the existing dwelling for purposes of ORS 197.312(5), regardless of whether either dwelling is occupied by the owner of the lot.
McCaffree v. Coos County, 79 Or LUBA 512 (2019)
Summary:
A local code amendment is not inconsistent with an administrative rule, so as to require reversal or remand of the amendment decision, merely because the amendment uses the phrase “ministerial decision” while the rule uses the phrase “administrative decision,” where the code does not treat those phrases differently. In addition, a local code amendment is not inconsistent with an administrative rule authorizing counties to grant extensions of permits if they determine the applicant was unable to begin or continue development “for reasons for which the applicant was not responsible” merely because the amendment provides a list of examples of such reasons, especially where the rule provides no definition or guidance for that phrase.
City of Albany v. Linn County, 79 Or LUBA 528 (2019)
Summary:
While a variance should not be used as a substitute for rezoning, a local government does not err in granting a variance without a showing that strict application of the zoning ordinance would cause “practical difficulties or unnecessary hardships because of exceptional or extraordinary circumstances or conditions affecting the applicant’s property” in a zone which the local code specifically exempts from that standard.
City of Albany v. Linn County, 79 Or LUBA 528 (2019)
Summary:
Where the only variable between multiple Urban Growth Area-Urban Growth Management (UGA-UGM) zones is lot size, and where a county code provision provides that “[t]he density of one UGA-UGM zoning district is not interchangeable with the density of another UGA-UGM zoning district without prior review and approval by the affected city and * * * County,” an interpretation by the county that the provision applies to zone changes of the subject property or changes to the underlying density of the zone in which the subject property is located, but that it does not apply to lot size variances, is inconsistent with the express language of the provision. In such cases, where the local code does not define “density” and the dictionary defines “density” as the quantity or number per unit of area, LUBA will make its own determination that a lot size variance in a UGA-UGM zone may qualify as an “interchange[]” with the density of another UGA-UGM zone, thereby requiring city review and approval.
City of Albany v. Linn County, 79 Or LUBA 528 (2019)
Summary:
Where a local code provision provides that “[a]pproval of [a] variance is limited to the minimum necessary to permit otherwise normal development of the property for the proposed use,” an interpretation by the local government that the provision means a variance may be approved if it permits development consistent with the surrounding land use pattern and the uses permitted in the underlying zone, and that it does not mean a variance may only be approved if it is necessary to permit development that is allowed in the zone, is not inconsistent with the language of the code or the purposes or policies underpinning the provision.
Gould v. Deschutes County, 79 Or LUBA 561 (2019)
Summary:
The fact that a tentative plan for a destination resort proposes a different pace of development than the final master plan, such as by sub-phasing development, does not materially affect the findings of fact on which the final master plan approval was based so as to constitute a “substantial change” to the final master plan, thereby requiring a new application, where neither the final master plan nor applicable regulations require that all development authorized in the first phase of the final master plan occurs at the same time.
Gould v. Deschutes County, 79 Or LUBA 561 (2019)
Summary:
Where the final master plan for a destination resort includes a mitigation plan requiring the applicant to replace the water consumed by the resort with a quantity and quality of water that will maintain fish habitat in an impacted stream, the fact that the tentative plan for one phase of development modifies the timing, but not the overall amount, of the mitigation water required to be provided does not materially affect the findings of fact on which the final master plan approval was based so as to constitute a “substantial change” to the final master plan, thereby requiring a new application, where there is no evidence that such modification will impact the efficacy of mitigation and there is evidence that such modification will result in more gradual, spread out impacts.
Currie v. Douglas County, 79 Or LUBA 585 (2019)
Summary:
Where a local code provision provides that issuance of a conditional use permit requires a determination that “[t]he proposed use is or may be made compatible with existing adjacent permitted uses and other uses permitted in the underlying zone,” an interpretation by the local government that it need not consider the impact of the proposed use on property values and neighbor peace of mind is not inconsistent with the provision’s express language or underlying policies.
Oregon Coast Alliance v. Curry County, 78 Or LUBA 81 (2018)
Summary:
When the county is entitled to deference under ORS 197.829(1), the decision can be reversed only if the interpretation is inconsistent with the express language, purpose or policy underlying the relevant code language. Under a non-deferential standard of review petitioner must demonstrate that the commissioners’ interpretation is reversible.
A Walk on the Wild Side v. Washington County, 78 Or LUBA 356 (2018)
Summary:
A petitioner may not also operate an exotic animal rescue facility, which is undisputedly not a “farm use,” on EFU land where the petitioner uses his or her EFU-zoned property for certain “farm uses,” under ORS 215.203. The existing “farm use[s]” do not “legitimize” the concurrent unpermitted uses, nor do they shield the unpermitted uses from county code enforcement action.
A Walk on the Wild Side v. Washington County, 78 Or LUBA 356 (2018)
Summary:
The statute of limitations in ORS 131.125(8)(c) is inapplicable to a county’s separate land use enforcement proceeding procedures pursuant to a county code that does not contain any time limitation for enforcement actions for violations of the county’s land use code, because the county has authority over land use code enforcement matters independent from any statutorily derived authority in ORS Title 14 pursuant to county charter, and because ORS 153.030(4) expressly provides that “[n]othing in this chapter affects the ability of any other political subdivision of this state to provide for the administrative enforcement of the charter, ordinances, rules and regulations of the political subdivision, including enforcement through imposition of monetary penalties.”
Elenes v. Deschutes County, 78 Or LUBA 483 (2018)
Summary:
A hearings officer’s interpretation is inadequate for review before LUBA where the hearings officer finds that that a proposed bed and breakfast inn designed for occupancy by an employee caretaker and up to eight non-resident guests qualifies as a “bed and breakfast inn,” without explaining how a caretaker occupancy is consistent with the county code which defines a bed and breakfast inn as an “owner-occupied” “single-family dwelling unit.”
Blu Dutch LLC v. Jackson County, 78 Or LUBA 495 (2018)
Summary:
A county hearings officer errs in denying a forest template dwelling application on the sole basis that petitioner had not provided a fire safety inspection, where the applicable ordinance provision entitled “Wildfire Safety Requirements” requires “[o]ther measures as recommended by the fire agency commenting on the application or the County Fire Safety Inspector,” and no fire agency recommended any measures or a fire inspection in any submitted comments.
Blu Dutch LLC v. Jackson County, 78 Or LUBA 495 (2018)
Summary:
Even though an applicant provides evidence of ownership of 200 or more acres in western Oregon after the application is deemed complete, a hearings officer correctly concludes that an application for a forest template dwelling satisfies ORS 215.740(3), where nothing in the statute or local development ordinances requires an applicant for a large tract forest dwelling to prove ownership of the parcel at the time an application is submitted.
Blu Dutch LLC v. Jackson County, 78 Or LUBA 495 (2018)
Summary:
A hearings officer correctly interprets ORS 215.740(3) in concluding that the minimum acreage requirement that applies to an application for a forest template dwelling is the minimum acreage for the applicant’s tracts located in western Oregon where the forest template dwelling is proposed to be located, rather than the non-contiguous parcel located in an adjacent county designated as eastern Oregon. ORS 215.740 allows an owner seeking a dwelling on a tract that is located in western Oregon to rely on non-contiguous land in another adjacent county to meet the minimum acreage requirements; it does not require that the minimum acreage requirements for the non-contiguous county be the applicable standard.
McAndrew v. Washington County, 78 Or LUBA 1094 (2018)
Summary:
Petitioner’s argument that the county hearings officer’s failure to adopt findings of compliance with a county code provision (Washington County Development Code (CDC 421-7.8)) is not a position presented “without probable cause” sufficient to entitle an award of attorney fees against a non-prevailing party, where LUBA agreed with petitioner that the hearings officer’s failure to adopt any findings explicitly addressing CDC 421-7.8 would warrant remand, unless, as occurred here, other findings with respect to other standards (CDC 422) in the hearings officer’s decision were sufficient to address the substantive standards set forth in CDC 421-7.8, and therefore the hearings officer’s failure to adopt findings addressing CDC 421-7.8 was harmless error.
Brannon v. Multnomah County, 77 Or LUBA 275 (2018)
Summary:
That different setbacks standards with different language are interpreted to require the same setback distance does not run afoul of the general interpretative requirement to give different effect to different words used in the same statute, where the local government shows that the different words nevertheless support requiring the same setback distance.
Patel v. City of Portland, 77 Or LUBA 349 (2018)
Summary:
The undefined standard categories “site-related development standards” and “use-related development standards” are ambiguous; a front setback standard and a maximum height standard could fall into either category.
Patel v. City of Portland, 77 Or LUBA 349 (2018)
Summary:
Where a general category called “use-related development standards” is followed by a nonexclusive list of examples, and minimum front setback and maximum height standards are not included on the list, that is some support for concluding that minimum front setback and maximum height standards are not use-related development standards. But where one of the specified examples of a general category called “use-related development standards” is “size of use standards,” it is certainly possible that a maximum height standard qualifies as a “size of use standard” and thus could qualify as a “use-related development standard.”
Patel v. City of Portland, 77 Or LUBA 349 (2018)
Summary:
Where a hearings officer’s findings provide an inadequate explanation for why he concluded minimum front setback and maximum building height standards qualify as “site-related development standards,” that prior city hearings officers and the city council have reached the same conclusion is some support for the hearings officer’s conclusion.
Patel v. City of Portland, 77 Or LUBA 349 (2018)
Summary:
Although local legislative history is generally not subject to official notice by LUBA and cannot be considered on appeal if it is not included in the local record, where the legislative history is contemporary commentary that was adopted by the city council when it adopted the legislation, LUBA will consider the commentary.
Patel v. City of Portland, 77 Or LUBA 349 (2018)
Summary:
Where a prior version of the zoning ordinance only allowed modifications for setback and height standards, and the zoning ordinance was amended to allow a general category of standards, that lends some support to the local government’s position that the general category of standards includes setback and height standards.
Patel v. City of Portland, 77 Or LUBA 349 (2018)
Summary:
Although LUBA may take official notice of commentary that was adopted with an ordinance, where that ordinance does not enact or amend the ambiguous zoning ordinance language at issue, it is of no significance in resolving the ambiguity.
Patel v. City of Portland, 77 Or LUBA 349 (2018)
Summary:
A hearings officer’s findings cannot be faulted for failing to address the impacts of a modification (variance) on petitioner’s nearby residence, where the findings expressly address those impacts and the relationship between the proposed structure and petitioner’s residence and point out that the proposed structure is downslope and offset from petitioner’s residence.
Patel v. City of Portland, 77 Or LUBA 349 (2018)
Summary:
A hearings officer’s failure to adopt findings that address potential impacts of a proposed building on one nearby dwelling in granting a maximum height modification (variance) is not a basis for remand, where the “on balance” nature of the modification (variance) approval standard does not necessarily require individual findings for every nearby residence, a public walkway between that dwelling and the proposed dwelling reduces any legitimate expectation of privacy, and the topography and scale of the proposed building is such that where the two structures adjoin each other they will be of similar height.
Landwatch Lane County v. Lane County, 77 Or LUBA 486 (2018)
Summary:
Oregon Laws 2008, chapter 12, legislatively overruled the holding in Phillips v. Polk County, 53 Or LUBA 194, aff’d, 213 Or App 498, 162 P3d 338 (2007), which provided that it was unlawful to adjust property boundaries in a way that results in parcels that fail to comply with applicable minimum parcel sizes. Oregon Laws 2008, chapter 12, authorizes property line adjustments of substandard size lots and parcels, even if the resulting lots or parcels continue to fail to comply with applicable minimum parcel sizes. Oregon Laws 2008, chapter 12, section 6 made that legislation retroactive to “property line adjustments approved before, on or after the effective date of this 2008 Act.” Therefore, Oregon Laws 2008, chapter 12 applies to a property line adjustment that took place in 2007, because the property line adjustment was “approved * * * before, on or after” the effective date of the 2008 Act.
Carlson v. City of Brookings, 77 Or LUBA 497 (2018)
Summary:
Petitioner fails to meet her burden to demonstrate that LUBA has subject matter jurisdiction over a city council’s decision to remove 35 trees from a city park, where petitioner argues the decision constitutes “logging” because it was motivated at least in part to generate revenue, and “logging” is not authorized under the Public Open Space zone that applies to the park. Simply because a city decides to offset the costs of removing hazardous trees to avoid the cost of treating and maintaining other compromised trees that are not yet hazardous does not convert the tree removal proposal into a logging operation, or otherwise make the decision a “land use decision.”
Carlson v. City of Brookings, 77 Or LUBA 497 (2018)
Summary:
Petitioner has not demonstrated that a city’s decision to remove 35 trees from a 33-acre city park will have a significant qualitative or quantitative impact on present or future land uses. The decision does not alter any of the land uses allowed in the park’s zone or any of the present or future land uses in the park, and the trees themselves are not land “uses” in any legally cognizable sense.
Columbia Pacific Building Trades Council v. City of Portland, 76 Or LUBA 15 (2017)
Summary:
LUBA will reject an argument that a legislative text amendment prohibiting new or expanded fossil fuel terminals is inconsistent with the Metro Framework Plan and Metro Transportation Plan where the city’s code requires only that code text amendments are consistent with Metro’s Urban Growth Management Functional Plan.
Warning: Names differ between headnote 'columbia pacific v portland' & case: columbia pacific building trades council v portland
Willamette Oaks LLC v. City of Eugene, 76 Or LUBA 187 (2017)
Summary:
A hearings officer errs in interpreting a condition of approval for a multi-phase planned unit development (PUD), which requires that the applicant for final phase approval submit a traffic stud y to determine if additional improvements are necessary to comply with the Transportation Planning Rule, to effectively supersede a different condition of approval applicable to all phases of the PUD that limits maximum development on the site to produce no more than a specified number of vehicle trips, where the two conditions can instead be interpreted to give effect to both.
Neighbors for Smart Growth v. Washington County, 76 Or LUBA 319 (2017)
Summary:
A county reasonably interprets its road vacation ordinance to apply to vacation of public easements, notwithstanding that the ordinance does not expressly refer to the vacation of public easements, where the ordinance implements ORS 368.326, a statute that authorizes counties to establish vacation procedures for, among other things, public easements.