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.
Kine & Kine Properties 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
Nicita v. City of Oregon City, 74 Or LUBA 176 (2016)
Summary:
Where a comprehensive plan policy calls on the city to “[m]aintain the existing residential housing stock in established older neighborhoods by maintaining existing Comprehensive Plan and zoning designations where appropriate,” and the city commission adopts a number of reasons why it believes maintaining existing planning and zoning designations is “not appropriate,” a petitioner must do more than set out reasons why he thinks maintaining the existing planning and zoning is appropriate without directly challenging the city commission’s reasoning.
Crockett v. Curry County, 58 Or LUBA 520 (2009)
Summary:
LUBA will affirm a governing body’s interpretation of a code provision requiring that a proposed use that is “inconsistent” with the transportation plan must be processed as a plan amendment, to require only that the county determine whether the proposed use is in conflict with any transportation plan policy, and not to require that the county find that the proposed use is specifically authorized by the transportation plan.
Grahn v. City of Yamhill, 76 Or LUBA 258 (2017)
Summary:
Any party may request an opportunity under ORS 197.763(6)(c) to respond to “additional written evidence” that was submitted during an open record period prior to the conclusion of the initial evidentiary hearing. But that response must be limited to responding to the “additional written evidence” that is submitted during the open record period.
Grahn v. City of Yamhill, 76 Or LUBA 258 (2017)
Summary:
Where a party’s evidentiary response to “additional written evidence” that was submitted during the initial open record period at the conclusion of the initial evidentiary hearing pursuant to ORS 197.763(6)(c) includes additional evidence that goes beyond responding to that “additional written evidence” that was submitted during the initial open record period, a local government must either reject the additional evidence or give all parties an opportunity to rebut the additional evidence.
Pinnacle Alliance Group, LLC v. City of Sisters, 73 Or LUBA 169 (2016)
Summary:
Under ORS 197.763(6)(a) through (c), prior to the conclusion of the initial evidentiary hearing any party may request an opportunity to present additional evidence. In that event, the hearing body must either continue the hearing or leave the record open to receive the additional evidence, and failure to do so is a procedural error. However, where the party making the request appeals and is given a de novo hearing before the local appellate body at which it is allowed to submit additional evidence, the hearings body’s error did not result in prejudice to the party’s substantial rights and therefore provides no basis for LUBA to remand.
Warren v. Josephine County, 67 Or LUBA 74 (2013)
Summary:
The requirements for continuances and open record periods in ORS 197.763(6)(a), (b) and (c) only apply to the initial evidentiary hearing and do not apply to subsequently continued hearings or open record periods.
Warren v. Josephine County, 67 Or LUBA 74 (2013)
Summary:
A local government does not err by granting additional seven-day open record periods following the conclusion of an initial seven-day open record period, where the local government’s code specifically authorizes additional continuances and open record periods.
Warren v. Josephine County, 67 Or LUBA 74 (2013)
Summary:
Where a local government accepts opponent evidence that goes beyond the stated scope of a seven-day open record period, but grants the applicant final argument and evidentiary rebuttal, the applicant’s substantial rights are not prejudiced and the local government’s error in accepting the opponent evidence does not provide a basis for remand.
Rosenzweig v. City of McMinnville, 66 Or LUBA 164 (2012)
Summary:
Where petitioners’ were allowed to present evidence during the hearings on a decision that is appealed to LUBA and remanded, the city need not allow petitioners a second opportunity to enhance their evidentiary presentation following LUBA’s remand where neither the city’s regulations nor LUBA’s remand require a further evidentiary hearing.
Conte v. City of Eugene, 66 Or LUBA 334 (2012)
Summary:
Parties to a land use proceeding have the right to review and respond to substantive changes in the application that occur during the proceedings. If such a change occurs after the close of the record or hearing, the local government may be required to re-open the record to allow other parties a reasonable opportunity to submit responsive testimony and evidence. Failure to do so can be procedural error and a basis for remand, if the petitioners demonstrate the error prejudiced their substantial rights.
Emmert v. Clackamas County, 65 Or LUBA 1 (2012)
Summary:
ORS 197.763 sets out the minimum procedures the county is required to follow in the conduct of quasi-judicial land use hearings under ORS chapter 215, and ORS 197.763 does not require that the county provide an applicant with prior copies or notice of the evidence that the county submits at the initial evidentiary hearing on a permit application.
Jones v. City of Grants Pass, 64 Or LUBA 103 (2011)
Summary:
Absent any allegation that the city council is required by its development code, other provisions of the city’s code or charter, or state law to adhere to Robert’s Rules of Order in voting on matters before it, failure to adhere to Robert’s Rules does not amount to a procedural error under ORS 197.835(9)(a)(B).
Sperber v. Coos County, 58 Or LUBA 570 (2009)
Summary:
When an approval criterion requires a partition map to show “other features affecting development,” a local government does not misinterpret the applicable law by requiring an applicant to show areas designated as less and least suitable by the comprehensive plan. “Other features affecting development” can encompass physical features themselves as well as comprehensive plan designations based on those features.
Jensen Properties v. Washington County, 61 Or LUBA 155 (2010)
Summary:
A county’s alleged failure to process a permit application under “Type II” procedures, which provide for a de novo hearing on appeal of an administrative decision, does not provide a basis for remand, where the county initially processed the application under “Type I” procedures that provide for a hearing limited to the issues raised in the appeal petition, but in fact the county provided a de novo hearing on the appeal not limited to the issues raised in the appeal petition.
Wetherell v. Douglas County, 60 Or LUBA 131 (2009)
Summary:
When a local code provision limits participation at a public hearing on remand from LUBA to persons who obtained “party” status at the initial hearing and excludes persons who had “witness” status, the local government may properly prevent persons who were “witnesses” at the initial hearing from participating on remand.
Stricklin v. City of Astoria, 56 Or LUBA 535 (2008)
Summary:
Where a local ordinance allows for a de novo hearing on appeal where new evidence and testimony may be presented, it does not mean that a local government also intends to allow new issues to be raised that were not specified in the notice of appeal, when the local ordinance requires issues on appeal to be specified.
Sommer v. Josephine County, 52 Or LUBA 209 (2006)
Summary:
Oral statements made by a decision maker in a public hearing that may conflict with a later vote do not provide a basis for reversal or remand. LUBA reviews the written findings made in support of a decision not statements made during public hearings.
Sommer v. Josephine County, 49 Or LUBA 134 (2005)
Summary:
A member of the governing body, who was absent from the meeting at which a land use application was orally approved, but who otherwise participated throughout the local proceedings, may properly sign the final written decision.
Smith v. City of St. Paul, 45 Or LUBA 281 (2003)
Summary:
A city council does not err in denying an applicant’s request for a de novo appeal hearing before the city council, where the city code provides that local appeals are limited to the record before the planning commission and a zoning ordinance provision that permits the city council to hear appeals de novo does not limit the city council’s discretion in determining whether it will do so.
Scheyer v. City of Hood River, 43 Or LUBA 112 (2002)
Summary:
ORS 227.180 does not require that a city council hold a de novo hearing on appeal of a land use decision after a de novo hearing by the city planning commission.
DLCD v. City of Gold Beach, 43 Or LUBA 319 (2002)
Summary:
Pursuant to ORS 197.830(3), a city decision maker must disclose all ex parte contacts at the first opportunity and must inform participants of their right to rebut the substance of the disclosure. However, a city’s failure to inform a petitioner of his right to rebut the substance of an ex parte disclosure will not result in reversal or remand where (1) the disclosure of the ex parte contact was promptly made; (2) petitioner had more than one opportunity to object to the adequacy and the content of the disclosure; and (3) no party appears to dispute the facts alleged in the disclosure.
Reeder v. City of Oregon City, 37 Or LUBA 794 (2000)
Summary:
In considering a request to continue a quasi-judicial land use hearing, a local government must evaluate the particular circumstances of the request, and balance the due process rights of the moving party against the potential prejudice to the other parties involved, including the local jurisdiction.
Reeder v. City of Oregon City, 37 Or LUBA 794 (2000)
Summary:
Where a local appeal is on the record, and the issues to be considered are limited to those raised in the notice of appeal, and there is likely to be a significant delay in the resolution of the appeal if a hearing is continued, a city does not abuse its discretion by denying an applicant’s request for a continuance.
VanSpeybroeck v. Tillamook County, 56 Or LUBA 184 (2008)
Summary:
LUBA will affirm a governing body’s interpretation of a code provision allowing second-floor residential use of a commercial building if “accessory to an active commercial use,” to permit residential use by persons who are not owners or employees of the commercial use, where the code defines an accessory use as one that is “incidental and subordinate,” rather than related to or associated with.
Lawrence v. Clackamas County, 36 Or LUBA 273 (1999)
Summary:
Where a county code provision requires a de novo review and a hearings officer’s decision includes language that suggests the hearings officer erroneously believed a de novo review was not required, there is no basis for reversal or remand where record makes it clear that the hearings officer nevertheless conducted the requisite de novo review.
Sanders v. Yamhill County, 34 Or LUBA 69 (1998)
Summary:
An opportunity to rebut undisclosed evidence obtained on a site visit is not required when that evidence is not the sole basis for a finding, but merely provides a context for integrating other evidence into findings.
Wicks-Snodgrass v. City of Reedsport, 32 Or LUBA 292 (1997)
Summary:
The provisions of ORS 197.763(6)(c) only apply to the “initial evidentiary hearing,” and therefore do not require the city council to reopen the record for rebuttal upon the request of a participant in a subsequent evidentiary hearing.
Fraley v. Deschutes County, 31 Or LUBA 566 (1996)
Summary:
Statements made by individual decision makers during local government hearings that express erroneous interpretations of law or legally improper reasons for adopting a land use decision provide no basis for reversal or remand unless such statements are adopted in the final written decision or findings supporting the written decision.
Warning: No matches by reporter page/vol or page/year: 31 Or LUBA 566 (1996), Unique case name match in 1996: Fraley v. Deschutes County, 32 Or LUBA 27
Sparks v. City of Bandon, 30 Or LUBA 69 (1995)
Summary:
Petitioners fail to demonstrate prejudice to their substantial rights arising out of an inaccurate notice published by the city when the mayor correctly stated the applicable criteria prior to the hearing.
Penland v. Josephine County, 29 Or LUBA 213 (1995)
Summary:
Where a local government decision includes a determination that an existing use of the subject property is lawful, it was improper for the local government to refuse to accept evidence or argument on this issue during the local proceedings.
ONRC v. City of Oregon City, 29 Or LUBA 90 (1995)
Summary:
Where a local government’s “initial evidentiary hearing” on a quasi-judicial land use application was held before the planning commission, the local government does not violate ORS 197.763(6) by denying petitioner’s request to leave open the record of a subsequent evidentiary hearing before the governing body.
Warning: Names differ between headnote 'onrc v city' & case: natural resources v city
Champion v. City of Portland, 28 Or LUBA 618 (1995)
Summary:
Where petitioner submitted evidence and argument to the city council during its de novo review of a decision of the city landmarks commission, even if procedural errors were made in the proceeding before the landmarks commission, petitioner’s substantial rights were not prejudiced.
Collins v. Klamath County, 28 Or LUBA 553 (1995)
Summary:
Where the local government gives notice of a hearing before two different hearings bodies on a development application, and those hearings are continued to another time, both hearings bodies must continue the hearing to avoid having to repeat the original notice process.
Welch v. City of Portland, 28 Or LUBA 439 (1994)
Summary:
In order to defer determinations of compliance with mandatory approval standards to a later stage where no public hearing is contemplated, the local government must first determine that compliance with those standards is possible.
Warning: No matches by reporter page/vol or page/year: 28 Or LUBA 439 (1994), Unique case name match in 1994: WELCH v. CITY OF PORTLAND, 28 Or LUBA 362
VanSpeybroeck v. Tillamook County, 56 Or LUBA 184 (2008)
Summary:
Where the relevant code provisions impose smaller building size limits on outright permitted commercial uses than conditionally permitted commercial uses, LUBA will affirm a governing body’s interpretation that a 4,353-square-foot structure housing both outright permitted and conditionally permitted commercial uses is not subject to the 4,000-square-foot limit on outright permitted commercial uses.
Tylka v. Clackamas County, 28 Or LUBA 417 (1994)
Summary:
A code provision that prohibits taking “notice of any communications * * * or other materials prepared in connection with the particular case unless the parties are afforded an opportunity to contest the material” prohibits a hearings officer from considering communications from the local government counsel, or proposed findings submitted by a party, without providing other parties an opportunity for rebuttal.
Woodstock Neigh. Assoc. v. City of Portland, 28 Or LUBA 146 (1994)
Summary:
Where petitioner had notice that the applicant revised his subdivision proposal to include cluster housing, and had an opportunity to present and rebut evidence regarding the proposed cluster housing in a de novo evidentiary hearing before the city council, petitioner’s substantial rights were not prejudiced simply because the cluster housing proposal was not referred to the hearings officer for hearing.
Salem-Keizer School Dist. 24-J v. City of Salem, 27 Or LUBA 351 (1994)
Summary:
It is reasonable to expect that a local government, in applying subjective comprehensive plan and code provisions, will include interpretive findings in its final decision. The parties to such local proceedings should know to include arguments concerning proper interpretation of such provisions in their presentations.
Citizens for Resp. Growth v. City of Seaside, 26 Or LUBA 458 (1994)
Summary:
Although a party to a quasi-judicial land use proceeding has the right to rebut new evidence, a request for the record to remain open so that a party can “complete her report” is not a request to rebut new evidence.
Warning: Names differ between headnote 'citizens for resp growth v seaside' & case: citizens for responsible growth v seaside
Leonard v. Union County, 24 Or LUBA 362 (1992)
Summary:
Where a local government fails to give a person an individual written notice of hearing to which the person is entitled, the local government fails to provide a hearing with regard to that person, within the meaning of ORS 197.830(3).
Reed v. Benton County, 23 Or LUBA 486 (1992)
Summary:
Poor quality tape recordings of local land use proceedings provide no basis for reversal or remand where petitioner fails to demonstrate that any properly submitted evidence was not considered by the local decision makers.
Coonse v. Crook County, 22 Or LUBA 138 (1991)
Summary:
Where there are oral statements during local proceedings suggesting confusion about who has the burden of proof in a local appeal, but there is nothing in the written decision to suggest the local government made an erroneous allocation of the burden of proof, LUBA will not assume the burden of proof was erroneously assigned to the opponents of the application.
Angel v. City of Portland, 21 Or LUBA 1 (1991)
Summary:
The right to rebut evidence placed before the local decision maker in a quasi-judicial land use proceeding extends to requiring disclosure of and opportunity to rebut the substance of ex parte communications to and personal site observations by the local decision maker.
Walker v. City of Beaverton, 18 Or LUBA 712 (1990)
Summary:
Where a city is not required under its code to allow surrebuttal if rebuttal is limited to nonevidentiary testimony and evidence already in the local record, parties asserting city denial of surrebuttal as reversible error must show that the rebuttal included new evidence and that denial of an opportunity to rebut such evidence prejudices their substantial rights.
Curl v. City of Bend, LUBA No 2020-103 (July 21, 2021) (2021)
Summary:
A local government may use additional hearing procedures other than the minimums specified in ORS 197.763 as long as it does not deny any participants’ rights under the statute. Where a hearings officer allows a post-hearing open record period, followed by a responsive open record period where any party may submit new evidence to respond to new evidence submitted in the first open record period, the hearings officer is not required by ORS 197.763 or local code to allow participants the right to rebut new evidence submitted in the responsive open record period. Under ORS 197.763, there is generally no right to rebut new evidence submitted in response to evidence in the record.
Saddle Butte Residents’ Association v. Douglas County, 56 Or LUBA 269 (2008)
Summary:
A county does not err in interpreting a planned development standard requiring that at least 50 percent of the development be open space “retained for common use by owners and residents of the development” to refer to both commonly owned open space and privately owned open space.
Schrepel v. Yamhill County, 81 Or LUBA 895 (2020)
Summary:
Where a local government requires opponents to be represented at a hearing by one spokesperson, their attorney, and prohibits oral testimony from the opponents themselves, and where the local government makes express and repeated findings that the opponents’ written testimony is not credible or not supported when viewed through the “obscured” lens of the local government’s judgement of the opponents’ attorney’s credibility, LUBA will conclude that the local government’s procedure prejudiced the opponents’ substantial rights to submit their case and to receive a full and fair hearing.
Warning: Names differ between headnote 'schrepel v yamhill' & case: 2020 066 067 schrepel v yamhill
Grahn v. City of Yamhill, 76 Or LUBA 258 (2017)
Summary:
Any party may request an opportunity under ORS 197.763(6)(c) to respond to “additional written evidence” that was submitted during an open record period prior to the conclusion of the initial evidentiary hearing. But that response must be limited to responding to the “additional written evidence” that is submitted during the open record period.
Grahn v. City of Yamhill, 76 Or LUBA 258 (2017)
Summary:
Where a party’s evidentiary response to “additional written evidence” that was submitted during the initial open record period at the conclusion of the initial evidentiary hearing pursuant to ORS 197.763(6)(c) includes additional evidence that goes beyond responding to that “additional written evidence” that was submitted during the initial open record period, a local government must either reject the additional evidence or give all parties an opportunity to rebut the additional evidence.
Central Oregon Landwatch v. Crook County, 76 Or LUBA 396 (2017)
Summary:
Neither ORS 197.830(13)(b) nor OAR 661-010-0021 dictate the scope of the issues that must be addressed when a local government withdraws a decision for reconsideration after it has been appealed to LUBA. The statute and rule also do not dictate how a local government must address offers of additional evidence at a reconsideration hearing.
Pinnacle Alliance Group, LLC v. City of Sisters, 73 Or LUBA 169 (2016)
Summary:
Under ORS 197.763(6)(a) through (c), prior to the conclusion of the initial evidentiary hearing any party may request an opportunity to present additional evidence. In that event, the hearing body must either continue the hearing or leave the record open to receive the additional evidence, and failure to do so is a procedural error. However, where the party making the request appeals and is given a de novo hearing before the local appellate body at which it is allowed to submit additional evidence, the hearings body’s error did not result in prejudice to the party’s substantial rights and therefore provides no basis for LUBA to remand.
Knapp v. City of Jacksonville, 70 Or LUBA 259 (2014)
Summary:
A local government does not err in rejecting as “new evidence” annotated site plans and calculations that were submitted after the close of the record in order to rebut the applicant’s testimony that the proposed development complies with lot coverage standards.
Warren v. Josephine County, 67 Or LUBA 74 (2013)
Summary:
The requirements for continuances and open record periods in ORS 197.763(6)(a), (b) and (c) only apply to the initial evidentiary hearing and do not apply to subsequently continued hearings or open record periods.
Purtzer v. Jackson County, 67 Or LUBA 205 (2013)
Summary:
A hearings officer’s failure to clearly explain to petitioner that the applicable procedures limit final written argument to the applicant does not constitute procedural error; indeed, allowing petitioner to submit final written argument as petitioner requested would violate the applicable procedures.
Wal-Mart Stores, Inc. v. City of Hood River, 67 Or LUBA 332 (2013)
Summary:
Where a city councilor at first announces that she will not participate in a land use appeal but later elects to participate, she must (1) disclose the substance of any ex parte communications she had in the matter as soon as possible after that election, and (2) give all parties an opportunity to respond to and rebut the substance of those communications.
Wal-Mart Stores, Inc. v. City of Hood River, 67 Or LUBA 332 (2013)
Summary:
Where a quasi-judicial land use decision maker fails to disclose any ex parte contacts, a petitioner does not waive its right to assign error to that failure at LUBA by failing to object below to the failure to disclose ex parte contacts.
Bridge Street Partners v. City of Lafayette, 56 Or LUBA 387 (2008)
Summary:
A local government interpretation that construes a local code requirement for open space that requires either “open space” or “outdoor recreation area” in a manner that requires both open space and outdoor recreation area is not entitled to deference under ORS 197.829(1).
Wal-Mart Stores, Inc. v. City of Hood River, 67 Or LUBA 332 (2013)
Summary:
A city councilor cannot claim to be unbiased and participate as a decision maker in a quasi-judicial land use appeal where that city councilor initially declared she would not participate as a decision maker due to bias or potential bias, and thereafter submitted documents as a party opposing the application.
Wal-Mart Stores, Inc. v. City of Hood River, 67 Or LUBA 332 (2013)
Summary:
Although there are LUBA decisions that have found a decision maker was biased because the decision maker exhibited an “emotional commitment” for or against a land use application, an “emotional commitment” is not required for disqualifying bias. A decision make who, while acting as a party in a quasi-judicial land use proceeding, expresses opposition to a proposal in focused, unemotional and analytical terms can be just as biased as a decision maker who does so in emotional terms.
Wal-Mart Stores, Inc. v. City of Hood River, 67 Or LUBA 332 (2013)
Summary:
Where the record suggests that a deadlocked city council might have broken that deadlock with continued deliberations and thereby avoided the need to invoke the “rule of necessity” to permit a biased city councilor to vote and break the tie, the city council invoked the rule of necessity prematurely.
Wal-Mart Stores, Inc. v. City of Hood River, 67 Or LUBA 332 (2013)
Summary:
Where the rule of necessity is properly invoked, because the votes necessary to break a tie and take action on a land use appeal cannot be achieved through further deliberation and there is no other body that can render the decision, the rule of necessity may be invoked and a decision maker who previously withdrew from participation due to bias or potential bias may participate as a decision maker to break the tie and allow the city council to take action.
Conte v. City of Eugene, 66 Or LUBA 334 (2012)
Summary:
Parties to a land use proceeding have the right to review and respond to substantive changes in the application that occur during the proceedings. If such a change occurs after the close of the record or hearing, the local government may be required to re-open the record to allow other parties a reasonable opportunity to submit responsive testimony and evidence. Failure to do so can be procedural error and a basis for remand, if the petitioners demonstrate the error prejudiced their substantial rights.
Conte v. City of Eugene, 66 Or LUBA 334 (2012)
Summary:
Remand is warranted, where a city’s procedural error in rejecting the petitioner’s request to submit evidence to respond to a substantive change in the application after the close of the record prejudiced the petitioner’s substantial rights to respond to the changed application.
Buel-McIntire v. City of Yachats, 63 Or LUBA 452 (2011)
Summary:
LUBA will deny a motion to consider petitioner’s affidavit regarding how his testimony to the planning commission would have been different if he had not been misinformed regarding the time limits, where the decision before LUBA is the city council decision conducted after an evidentiary hearing, and petitioner does not explain why any error committed by the planning commission was not cured by the proceedings before the city council.
Claus v. City of Sherwood, 62 Or LUBA 67 (2010)
Summary:
A petitioner’s allegations that the city mayor cut off his oral testimony to censor the content of petitioner’s testimony is not supported by the record, where the mayor gave the petitioner the same amount of time to speak as other participants and there is no indication in the record that the mayor’s attempt to hold petitioner to the announced three-minute time limit was based on the content of petitioner’s testimony.
Claus v. City of Sherwood, 62 Or LUBA 67 (2010)
Summary:
A city council hearing on a planning commission recommendation to approve a planned unit development application is not a “continued” evidentiary hearing for purposes of a code provision implementing ORS 197.763(6) that allows participants to request the opportunity to respond to new evidence submitted at a continued hearing.
Reeves v. City of Wilsonville, 62 Or LUBA 142 (2010)
Summary:
Limiting a party to 10 minutes for oral testimony in a quasi-judicial land use hearing before a design review board, while allowing unlimited written testimony, and limiting an appeal of the design review board to the city council to an on-the-record review does not violate the party’s right to due process.
Azore Enterprises, LLC v. City of Hillsboro, 56 Or LUBA 422 (2008)
Summary:
A city is not required to interpret traditional variance language (“practical difficulty or unnecessary hardship”) in accordance with the traditional strict meaning of that language, particularly when that language is not used as part of the city’s variance code but instead was borrowed from the variance context to be used as a test for expanding nonconforming uses.
Columbia Riverkeeper v. Clatsop County, 60 Or LUBA 454 (2009)
Summary:
When during the proceedings on remand from LUBA, the local government allows additional argument but no new evidence, and the local government redacts written testimony that it considers new evidence, the unredacted documents are not properly part of the record.
Warning: Warning in alternate matched case: Heading month: 12 doesn't match: 11 in /Orders/2009/11-09/2009-100%20COLUMBIA%20RIVERKEEPERS%20et%20al%20v%20CLATSOP%20CO%20(OSR).pdf, Names differ between headnote 'columbia riverkeeper v clatsop' & case: columbia riverkeepers v clatsop
Columbia Riverkeeper v. Clatsop County, 60 Or LUBA 454 (2009)
Summary:
When during the proceedings on remand from LUBA, the local government allows additional argument but no new evidence, the local government is not required to erase oral testimony that contains new evidence from the recordings of meetings submitted to LUBA. OAR 661-010-0025(1)(b) only applies to written documents, not oral testimony.
Warning: Warning in alternate matched case: Heading month: 12 doesn't match: 11 in /Orders/2009/11-09/2009-100%20COLUMBIA%20RIVERKEEPERS%20et%20al%20v%20CLATSOP%20CO%20(OSR).pdf, Names differ between headnote 'columbia riverkeeper v clatsop' & case: columbia riverkeepers v clatsop
Oregon Shores Cons. Coalition v. City of Brookings, 58 Or LUBA 421 (2009)
Summary:
A local government that accepts a letter on the last day of the rebuttal period does not err in accepting a signed version of the same letter one day later after the rebuttal period has ended.
Thompson v. Jackson County, 53 Or LUBA 317 (2007)
Summary:
A local government may allow public testimony and materials to be submitted into the record for the limited purpose of determining whether the proposed decision properly describes a prior oral decision, even if that testimony and materials relate to the merits of the underlying decision, if the local government makes clear that the scope of the hearing is limited to that narrow issue.
Angius v. Washington County, 52 Or LUBA 222 (2006)
Summary:
A hearings officer’s refusal to leave the record open to allow the petitioners to respond to alleged “new evidence” that was submitted during the final evidentiary hearing is not a basis to reverse or remand the decision, where petitioners fail to establish that in fact “new evidence” was submitted or that there is anything to rebut under the hearings officer’s unchallenged interpretation of the applicable code provision.
Smith v. City of St. Paul, 45 Or LUBA 281 (2003)
Summary:
A city council does not err in denying an applicant’s request for a de novo appeal hearing before the city council, where the city code provides that local appeals are limited to the record before the planning commission and a zoning ordinance provision that permits the city council to hear appeals de novo does not limit the city council’s discretion in determining whether it will do so.
Sheppard v. Clackamas County, 45 Or LUBA 507 (2003)
Summary:
If a county rejects evidence that was submitted after the close of the record, and does not consider that evidence in making its decision, the county’s refusal to permit rebuttal of that late submittal does not provide a basis for reversal or remand.
Sheppard v. Clackamas County, 45 Or LUBA 507 (2003)
Summary:
Where it is clear that a decision maker considered evidence that was submitted after the close of the record, and that the decision maker may have relied on that evidence in making its decision, the decision maker errs in refusing to allow rebuttal to that evidence, notwithstanding a statement in the final decision document that the disputed evidence was rejected.
Doty v. Jackson County, 43 Or LUBA 34 (2002)
Summary:
A local government properly rejects evidence submitted after the close of the evidentiary record, where the proponent of the evidence did not adequately request or preserve the opportunity to submit additional evidence.
Crowley v. City of Bandon, 43 Or LUBA 79 (2002)
Summary:
Even where no specific statutory or local provisions govern limits on presentation of evidence on remand from LUBA, the parties have a fundamental right during an evidentiary proceeding to present and rebut evidence. An evidentiary proceeding on remand that fails to offer any opportunity to rebut new evidence submitted on remand is inconsistent with Fasano v. Washington Co. Comm., 264 Or 574, 503 P2d 23 (1973).
Bullock v. City of Ashland, 56 Or LUBA 677 (2008)
Summary:
LUBA will affirm a governing body’s interpretation that a code provision requiring that private wells be shown to meet certain bacteriological quality standards does not also require a showing of sufficient quantity, where the code provision does not mention water quantity and other code standards appear to govern water quantity. Gardener v. Marion County, 56 Or LUBA 583 (2008). 1.1.3 Administrative Law – Interpretation of Law – Effect of Local Government Interpretation. When a local code allows exceptions when there is a “demonstrable difficulty” in meeting the applicable approval standard, a finding that meeting the approval standard would produce little benefit, even if true, does not establish that there is a “demonstrable difficulty” in meeting the standard.
Lord v. City of Oregon City, 43 Or LUBA 361 (2002)
Summary:
A local government does not commit reversible error by limiting a party to two minutes of testimonial rebuttal where (1) the party agreed to the two-minute limit, (2) there is no legal obligation for the city to hold the record open or continue the evidentiary hearing to allow written rebuttal, and (3) the party does not demonstrate to LUBA that the evidence the party wishes to rebut is relevant.
Lord v. City of Oregon City, 43 Or LUBA 361 (2002)
Summary:
Where a party and the party’s attorney are given an adequate opportunity to rebut the substance of a short letter, the local government commits no error in refusing to provide an additional hearing for the party to offer further rebuttal of the letter.
Haug v. City of Newberg, 42 Or LUBA 411 (2002)
Summary:
A local code providing that the scope of review for an appeal of a planning commission decision to the city council is a “Record Hearing,” and defining a “Record Hearing” as a hearing limited to review of the existing record or evidence previously submitted, does not limit the legal issues or arguments that may be presented on appeal; only the evidence that may be considered.
Haug v. City of Newberg, 42 Or LUBA 411 (2002)
Summary:
A local appellate body may, on its own, raise issues that are not presented in the notice of local appeal, where the local code does not specifically limit the scope of review on appeal to the issues identified in the notice of local appeal.
Hawman v. Umatilla County, 42 Or LUBA 223 (2002)
Summary:
Where a local government departs from the procedures for continuing a hearing set out in ORS 197.763(6)(a) to (c), the revised procedures must be clearly communicated to all parties and, preferably, reduced to writing.
Hawman v. Umatilla County, 42 Or LUBA 223 (2002)
Summary:
Where the circumstances under which oral testimony would be allowed at a continued hearing are not clearly defined, and petitioners allege that they were prejudiced by being denied an opportunity to present oral testimony at the continued hearing based on the ambiguity of the procedures, remand is appropriate to ensure that petitioners receive an opportunity to present that oral testimony.
Terra v. City of Newport, 40 Or LUBA 286 (2001)
Summary:
Where, on remand from LUBA, the local government adopts a procedure that is proposed by the parties and that allows all sides to submit written evidence and written rebuttals, but limits oral testimony at the evidentiary hearing before the local government to summaries and explanations of previous submittals, the procedure is not correctly interpreted to prohibit an oral explanation of previously submitted evidence that includes additional supportive facts in response to the previously submitted written rebuttal.
Dept. of Transportation v. City of Eugene, 38 Or LUBA 814 (2000)
Summary:
Under ORS 197.763(6)(e), a local government may consider final written legal argument. However, a local government may not consider new factual allegations, as part of legal arguments submitted under ORS 197.763(6)(a), without providing an opportunity for rebuttal.
Kane v. City of Beaverton, 38 Or LUBA 183 (2000)
Summary:
Where a city allows one party more time to present oral testimony during a land use hearing than is allowed another party, the unequal allocation of time will not constitute error so long as the city’s decision explains the reason for the differentiation, there is an unlimited opportunity to submit written testimony, and the unequal allocation of time does not cause substantial prejudice.
Wild Rose Ranch Enterprises v. Benton County, 37 Or LUBA 368 (1999)
Summary:
A local government may limit oral testimony if adequate opportunity is provided for the submission of written testimony.
Lufkin v. City of Salem, 56 Or LUBA 719 (2008)
Summary:
A local government’s interpretation of the meaning of various street classifications that are defined in its comprehensive plan is not inconsistent with the express language of the plan provision.
Johnson v. Clackamas Count, 37 Or LUBA 73 (1999)
Summary:
Under ORS 215.416(11)(a), a hearings officer is obligated to conduct a de novo hearing that allows the introduction and consideration of all relevant evidence notwithstanding that the evidence could have been presented to the initial decision maker, but was not.
Warning: Names differ between headnote 'johnson v clackamas count' & case: johnson v clackamas
McElroy v. City of Corvallis, 36 Or LUBA 185 (1999)
Summary:
Absent land use regulations that specify a particular procedure when a decision is withdrawn for reconsideration pursuant to OAR 661-010-0021, the procedures that govern depend on what stage in the process the local government returns to on reconsideration. Procedures governing evidentiary hearings are not applicable when the local government does not reopen the evidentiary record during the reconsideration proceedings.
Hunt v. City of Ashland, 35 Or LUBA 467 (1999)
Summary:
A staff recommendation regarding appropriate conditions of approval that is submitted after the close of the evidentiary hearing is not new “evidence” that might, if submitted by one of the parties, trigger an obligation to reopen the record for rebuttal.
Brown v. City of Ontario, 33 Or LUBA 180 (1997)
Summary:
ORS 197.763(6)(c) requires a participant to file a written request with the local government for an opportunity to respond to new evidence submitted during the period after a hearing that the record is left open.
Brown v. City of Ontario, 33 Or LUBA 180 (1997)
Summary:
ORS 197.763(6)(e) allows an applicant seven days after the record is closed to all other parties to submit final written arguments in support of the application.
Concerned Citizens v. Jackson County, 33 Or LUBA 70 (1997)
Summary:
Where a continuance required by ORS 197.753(4)(b) to allow opponents to respond to new evidence was not granted before the city and county planning commissions made their recommendation to the city council and county commissioners, a procedural error occurred, but that error is no basis for remand when the opponents submitted a detailed rebuttal during the year-long interim between the date of the recommendation and the decision of the governing bodies, who considered additional evidence and testimony as part of a de novo review of the applications.
Warning: Names differ between headnote 'concerned citizens v jackson' & case: concerned citizens upper rogue v jackson
Nicholson v. Clatsop County, 32 Or LUBA 399 (1997)
Summary:
A local government commits procedural error when it does not allow petitioners the opportunity to address the applicability of an ordinance that had not been identified as an applicable criterion, and then adopts findings based on that ordinance. If the ordinance is extrinsic to the applicable criteria, then it is evidence which the parties have the right to rebut; if the ordinance is an applicable criterion, then it must be identified in the hearing notice with greater specificity than “all other adopted county ordinances.”