2014 LAND USE CASES A Review of Significant 2014 … LAND USE CASES A Review of Significant 2014 LUBA, Oregon Court of Appeals, Oregon Supreme Court and Federal Cases Carrie Richter

2014 LAND USE CASES

A Review of Significant 2014 LUBA, Oregon Court of Appeals,

Oregon Supreme Court and Federal Cases

Carrie Richter

Garvey Schubert Barer

121 SW Morrison Street, 11th Floor, Portland, OR 97204

(503) 228-3939 - [email protected] - http://northwestlandlawforum.com

mailto:[email protected]

http://northwestlandlawforum.com/

TABLE OF CONTENTS

I. Constitutional Law and Federal Law ................................................................................. 1

II. Statewide Substantive Land Use Statutes .......................................................................... 1

A. Airports – ORS 836.600 ........................................................................................ 1

B. Farm Uses – ORS 215.283..................................................................................... 2

1. Accessory Farm Dwellings ........................................................................ 2

2. Utility Facilities Necessary for Public Service – ORS

215.283(1)(c) ............................................................................................. 3

3. Non-Farm Dwellings in Marginal Land Counties ..................................... 4

C. Forest Uses – Forest Template Dwellings ............................................................. 4

D. Non-Conforming Uses – ORS 215.130 ................................................................. 4

D. Lot Line Adjustments – ORS 92 et. seq. ............................................................... 6

E. Needed Housing – ORS 197.307 ........................................................................... 6

F. Historic Designation and Owner Consent – ORS 197.772 .................................... 8

III. Statewide Planning Goals .................................................................................................. 9

A. Goal 2 - Land Use Planning ................................................................................... 9

B. Goal 4 – Forest Lands .......................................................................................... 11

C. Goal 5 - Natural Resources, Scenic and Historic Areas, and Open Spaces ......... 12

D. Goal 11 – Public Facilities and Utilities .............................................................. 13

IV. Local Government Procedures ......................................................................................... 14

A. Impartial Tribunal ................................................................................................ 14

B. Standing ............................................................................................................... 14

V. LUBA Jurisdiction, Procedures and Rules ...................................................................... 16

A. NITA Formalities ................................................................................................. 16

B. Jurisdiction ........................................................................................................... 16

C. Time Limits .......................................................................................................... 20

D. Record .................................................................................................................. 20

E. Raise it or Waive it .............................................................................................. 20

F. Motion to Take Evidence ..................................................................................... 21

VI. LUBA Scope of Review .................................................................................................. 22

A. Local Code Interpretation and Applicable Standards .......................................... 22

B. Adequate Findings ............................................................................................... 25

C. Substantial Evidence ............................................................................................ 26

VII. Oregon Court of Appeals Procedures – Mootness ........................................................... 27

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Carrie Richter – [email protected] – 503.228.3939 – www.northwestlandlawforum.com

I. CONSTITUTIONAL LAW AND FEDERAL LAW

Burwell v. Hobby Lobby, 573 U.S. ___ (June 2014). This case deals with the

implementation of the Affordable Care Act and whether corporations are

“persons” who could assert another federal law, i.e., the Religious Freedom

Restoration Act (RFRA), requiring a higher level of judicial review that may

restrict federal regulations imposing obligations, in this case federal regulations

requiring employers to provide their female employees with no-cost access to

contraception. The owners of Hobby Lobby were Christians who believe that life

begins at conception. The Department of Justice contended that corporations are

not “persons” who may engage in the “exercise of religion,” and thus seek RFRA

protections. The majority opinion by Justice Alito reasoned that the Dictionary

Act defines word “person” as including for-profit corporations. Moreover, the

court accepted the argument that furthering religious autonomy of for-profit

corporations serves to further individual religious freedom as well. RFRA does

not prohibit laws and regulations that would have an adverse effect on religious

practices; however, it does make such regulations more difficult to promulgate by

requiring both a compelling governmental interest to do so and a showing that the

least-restrictive-means are used. Even if the federal government could prove that

there was a compelling governmental interest in providing women with cost-free

access to four challenged contraceptive methods, the court found the government

had not shown why it could not assume the costs of such methods, or why an

accommodation afforded to for-profit organizations with religious objections

would fail to protect asserted needs of women as effectively as a coverage

mandate. RFRA has been succeeded in the land use context by the Religious

Land Use and Institutionalized Persons Act (RLUIPA). Among other things,

RLUIPA prohibits imposition or implementation of a land use regulation in a

manner that imposes a substantial burden on the religious exercise of a “person.”

In such cases, the regulation may be upheld only if the public agency shows a

“compelling governmental interest” and uses the “least restrictive means” of

achieving that interest. RLUIPA does not define “person;” however, the

Department of Justice has used the term only included “individuals, religious

assemblies and institutions.” Hobby Lobby thus expands this term.

II. STATEWIDE SUBSTANTIVE LAND USE STATUTES

A. Airports – ORS 836.600

Oregon Aviation Watch v. Washington County, ___ Or LUBA ___ (LUBA No.

2013-111, April 2014) Petitioners challenged a county ordinance to adopt a

residential airpark overlay district to allow hangars and associated tie-down areas

and taxi-ways on residentially zoned land. Petitioners argued that the proposal

violates the Airport Planning Act, ORS 836.600 and implementing rules, Goal 6

and the county’s plan. LUBA rejected petitioners’ claim that hangars, tie-downs

and taxiways could not be authorized outside the boundaries of an airport finding

that limitation applies only to airports located on lands zoned for exclusive farm


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use. An airport boundary need not include “aircraft storage” and as a result,

aircraft can be stored outside the boundary and taxiways necessary to move

between the storage site and the airport. LUBA rejected petitioner’s Goal 6

arguments because petitioners failed to identify and state or federal regulation that

would apply to hangar, tie-downs or taxiways. Similarly, LUBA found nothing

about the proposal to be inconsistent with the county’s comprehensive plan.

B. Farm Uses – ORS 215.283

1. Accessory Farm Dwellings

Aplin v. Deschutes County, ___ Or LUBA ___ (LUBA No. 2103-055,

March 2014) Petitioner appealed a decision by the county board of

commissioners approving an accessory farm dwelling and a relative farm

assistance dwelling, on a parcel zoned for exclusive farm use. The

applicant (intervenors) own and operate a ranching operation on an 834-

acre parcel with 189 irrigated acres, used for hay production and raising

cattle and elk. Intervenors applied to the county to approve one of the

manufactured dwellings as a “relative farm assistance dwelling,” to allow

one intervenor’s parents (Parents) to continue to occupy the dwelling.

Deschutes County Code (DCC) 18.16.025(B) implements ORS

215.283(1)(d) in providing for a relative farm assistance dwelling, where

the farm operator does or will require the assistance of the relative in the

management of the farm use. The application included a list of farm duties

the Parents would perform on the ranch. In addition, the application

sought approval of another manufactured dwelling as an “accessory” farm

dwelling under DCC 8 18.16.050(C) and OAR 660-033-0130(24), which

require that the occupants of the dwelling be “principally engaged” in the

farm use and the accessory dwelling be located on the same lot as the

“primary farm dwelling.” The accessory dwelling would be occupied

Dave Page and Terri Page. Petitioner challenged the county’s findings on

the basis that they do not adequately explain what “principally engaged”

means and do not show that the standard is met. Dave Page is a full-time

trucker, and Terri Page is a homemaker. Where occupants of a proposed

farm dwelling operate a nonfarm business on the property, which

represents their primary economic livelihood, the county must evaluate the

extent to which the occupants of the proposed dwelling will be engaged in

use of the property, as opposed to nonfarm uses, and allow the dwelling

only if the evidence shows at least one occupant will be “principally

engaged” in farm use. This includes consideration of the amount of time

that the occupant of an accessory farm dwelling will be engaged in farm

use of the property along with the number of hours required on average

each week for a person to be principally engaged in farm use will vary

from farm use to farm use. The applicant must first establish the average

number of hours each week typically required for a full-time employee of

the relevant farm use. A person “principally engaged” in that farm use



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must devote a similar number of hours, whether that person is also

employed off the farm or not. It was understood Dave Page was not

principally engaged in farm use, but intervenors argue Terri Page was.

LUBA was skeptical that Terri Page was engaged in “ranch security,”

which apparently meant being present in her house, but is more open to

the claim that she provided assistance in elk births, elk-related record

keeping and general bookkeeping. The first two can be viewed as farm

uses, but the county’s findings did not adequately establish that the

“general bookkeeping” was necessary to run the farm operation or the

amount of time that was spent on any of the listed activities. The decision

was remanded.

2. Utility Facilities Necessary for Public Service – ORS 215.283(1)(c)

McLoughlin v. Douglas County, ___ Or LUBA ___ (LUBA No. 2014-

049, Nov. 2014). Petitioners challenged a decision modifying the

alignment of a previously approved natural gas pipeline, and removing a

condition of approval that the limited use of the pipeline to importing

natural gas, facilitating the applicant’s proposal to use the pipeline to

export natural gas through Jordan Cove. The county granted extensions to

the original conditional use on three occasions because the applicant ha

not yet obtained all local, state and federal approvals. Petitioner argued

that in this case, those extensions were wrongly granted because they did

not satisfy an extension criterion that there had been a change of

conditions for which the applicant was not responsible. LUBA found no

code provision or authority requiring that the county revisit those

extension decisions and regardless of whether they could have been

appealed, they were final decisions that were not relevant to the subject

proceeding. Petitioners further challenged the decision-making process

because after an initial tie vote, the planning commission voted to

reschedule the deliberations at a meeting where all of the initial planning

commissioners were not present, a violation of a local code provision.

LUBA found that even if the vote to reschedule violated the local code,

LUBA could remand only upon a finding that the procedural violation

“prejudiced the substantial rights of the petitioner.” ORS

197.835(9)(a)(B). LUBA found that petitioners’ “substantial rights” did

not include the right to any particular outcome from a vote and therefore,

denied this assignment of error. Finally, petitioners argued that ORS

215.283(1)(c), permitting a “utility facility necessary for public service” to

be located on land zoned for exclusive farm use does not only not apply to

interstate gas pipelines subject to regulation under FERC, the term “utility

facility” is not limited to facilities that provide services to county

residents, as the local code might suggest. Local limitations may not be

applied to deny a use authorized by ORS 215.283(1)(c) under Brentmar v.

Jackson County, 321 Or 481, 900 P2d 1030 (1995). The decision was

affirmed.



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3. Non-Farm Dwellings in Marginal Land Counties

Landwatch Lane County v. Lane County, ___ Or LUBA ___ (LUBA No.

2014-070, Nov. 2014) Petitioners appealed a decision approving an

application for a nonfarm dwelling on land zoned Exclusive Farm use in

Lane County, a marginal land county. This case opens by setting out the

statutes and regulations that control the siting of nonfarm dwellings

depending on where they are located, when they were created and the type

of farmland. Petitioner argued that the county erred by allowing a

nonfarm dwelling because the land was not created before January 1,

1993, as ORS 215.284(1)(c) requires, even though it is in the Willamette

Valley and contains high value farmland. LUBA disagreed with

Petitioners finding that as a marginal lands county, nonfarm dwellings are

subject to ORS 215.213(3) and not ORS 215.284. LUBA went on to

reject Petitioners claim that ORS 215.213 does not treat lands inside the

Willamette Valley and lands outside the Willamette Valley differently,

even though those distinctions have meaning for non-marginal land

counties. The county’s decision was affirmed.

C. Forest Uses – Forest Template Dwellings

West v. Multnomah County, ___ Or LUBA ___ (LUBA No. 2014-048, Sept.

2014). Although the density restrictions for a forest template dwelling are set by

state law, counties are permitted to regulate forest lands more stringently.

Multnomah County requires that to qualify for a forest template dwelling there

must have been at least five dwellings on the required 11 template lots or parcels

in 1993 and those dwelling must continue to exist at the time that the dwelling

application is filed. In this case, the county denied the requested permit on the

ground that one of the existing structures on an adjacent parcel did not “continue

to exist” based on its dilapidated condition. Petitioner argued that it was the

dwelling’s existence as a standing structure rather than whether it was or could be

occupied as setting the applicable standard. Relying on a description of

“dwelling” as containing complete “living facilities,” LUBA concluded that a

dwelling includes some consideration of habitability. LUBA also agreed that

even though the use of the neighboring structure could be considered a non-

conforming use, that use had been discontinued for at least two years and was no

longer a dwelling. The decision was affirmed.

D. Non-Conforming Uses – ORS 215.130

Kaimanu v. Washington County, ___ Or LUBA ___, (LUBA No. 2014-035, Sept.

2014) Intervenor filed an application for special use and development review for

a preschool in an existing structure that does not meet the current setback

standards. The hearings officer’s decision relied on local regulations governing

non-conforming structures and modifications to such structures that were never

raised during the proceeding before the decision was issued. LUBA found that



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references in the pre-hearing notices to “Article IV, Development Standards,”

including 373 single spaced pages was not sufficient notice that the non-

conforming use standard would be applied and therefore, challenges to those

findings were not waived. Petitioner first argued that the county erred in finding

that a special 30-foot setback for schools was satisfied given the non-conforming

nature of the structure when the structure had never been used to accommodate a

school. LUBA agreed finding that even though the building may be put to some

other use that would require compliance with the more general 20-foot setback,

that non-conforming status cannot give a change in a use a right to violate the

code with regard to a new use. This same reasoning applied to the parking were

the preschool required 8 parking spaces and the applicant proposed only 5.

Again, the fact that the structure was non-conforming with regard to setbacks did

not alter the obligations to comply with other requirements regarding schools.

Next petitioner challenged the county’s consideration of whether the non-

conforming use would have “no greater adverse impact on the neighborhood”

when: (1) no party challenged whether this criterion would apply when a

preschool use is allowed in the zone and (2) the county considered impacts from

the proposed use against other potential uses in the zone. LUBA disagreed with

this approach holding that the comparison was to be of this property’s proposed

altered use compared against its prior non-conforming use. Third, the county

erred by recognizing the existing structure as a legally established nonconforming

use and to grant approval for its alteration without giving notice and such failure

to provide notice prejudiced petitioner’s substantial rights. Finally, LUBA found

that the buffering and screening requirements were not met in the county’s

decision and asked for sufficient explanation on remand as to why the hearings

officer approved a different level of screening and buffering than was set out in

the code.

Rogue Advocates v. Jackson County, ___ Or LUBA ___, (LUBA Nos. 2013-

102/103, Aug. 2014) Petitioner challenged a non-conforming use approval

verifying, in part, an asphalt batch plant and a decision denying a permit to

operate the batch plant within the floodplain. Petitioner argued that the county’s

conclusion that the batch plant existed on the property when the use became non-

conforming was not supported by substantial evidence. LUBA disagreed finding

that a reasonable person could rely oral testimony to support the conclusion.

Second, petitioner argued that the batch plant was not lawful because there was no

evidence that the necessary DEQ permits were in place when the use began.

LUBA found that verification of a non-conforming use under ORS 215.130(5)

requires an evaluation of whether the use required permits at the time it began or

whether all required local land use approvals were obtained, noncompliance with

federal or state licensing requirements, that are not “integrally related to the

zoning or land use regulation” cannot be used to determine that the use was not

lawful. Next, petitioner challenged the county’s finding that the conversion of a

concrete batch plant, operating originally on the property, to the installation of an

asphalt batch plant was the same use and not an alteration of the use that cannot

be verified as part of the original non-conforming use. The county found that



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both concrete and asphalt batch plants fell into the same use category of

“manufacturing and production, high impact” and thus a change within the same

category had no significance. LUBA agreed explaining that just because two uses

fall within the same zoning category does not mean that replacing one type of

plant with another would not constitute an alteration, especially when ORS

215.213(5) contains special exceptions where changes do not require review.

D. Lot Line Adjustments – ORS 92 et. seq.

Meyer v. Jackson County, ___ Or LUBA ___ (LUBA No. 2014-005, April 2014)

Petitioner challenged a lot line adjustment decision arguing that it amounted to a

replat as defined in ORS 92.010(13). Based on the local code provisions and the

definition in ORS 92.010, the Hearings Officer rules that the express language of

the definition of property line adjustment in ORS 92.010(12) does not require that

abutting property be located inside the subdivision in order to complete a property

line adjustment. LUBA agreed and found that there was no “act of platting,” no

“reconfiguration of the existing subdivision,” and no “increase or decrease in the

number of lots in the subdivision” that could be accomplished only as a replat.

The county’s decision was affirmed.

E. Needed Housing – ORS 197.307

Parkview Terrace Development LLC v. City of Grants Pass, ___ Or LUBA ___

(LUBA No. 2014-024, July 2014). In this case, LUBA considered the appeal of a

Grants Pass City Council decision that denied the Petitioner site plan approval and

a variance from street and block length standards to permit construction of 50

units of federally assisted housing for low-income individuals. The subject

property is zoned High Density Residential (R-3) and includes approximately

3.02 acres. The site is neighbored by residential townhouses, a warehouse, a

mini-storage facility and a City park. In 2006, the City approved a planned unit

development (PUD) for 88-units, but only 28 townhouses were constructed before

the project was shelved during the recession. The Petitioner, a successor-in-

interest to the original developer, wanted to build a 50-unit multi-family housing

project in place of the second and third phases of the PUD. In contrast to the for

sale townhouses, the new units would be rental units. Although the project was

supported by staff and the Planning Commission, the City Council denied the

application. The applicant appealed because the City Council applied standards

that were not “clear and objective” under the needed housing statute, ORS

197.307(4), and because the City Council erred in its findings related to variance

criteria. LUBA agreed and reversed the decision. The following standards were

not considered clear and objective:

A standard that the proposal comply “with applicable elements of the

Comprehensive Plan, including: Traffic Plan, Water Plan, Sewer Plan, Storm

Drainage Plan, Bicycle Plan, and Park Plan,” where the City Council’s decision

focused on the Traffic Plan which is an eight chapter long Master Transportation



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Plan. Many of the goals and objectives in the Traffic Plan are not clear and

objective.

A standard that requires “potential land use conflicts have been mitigated through

specific conditions of development,” where the City Council concluded without

explanation that the criterion was not satisfied. LUBA found that mitigation of

“potential land use conflicts” is not clear and objective.

A standard that requires that “adequate basic urban services are available, or can

be made available by the applicant as part of a proposed development or are

scheduled by the City Capital Improvement Plan.” The terms “adequate,” “basic

urban services” and “available” are not explained in the Code and without some

explanation those terms are not clear and objective.

A standard that the “provision of public facilities and services to the site will not

cause service delivery shortages to existing development” was not clear and

objective because the Code did not provide guidance regarding the scope of

“public facilities and services” or how to go determine if the proposal will cause

service delivery shortages to existing development or what qualifies as a shortage.

A standard regarding mitigation for special design consideration related to

existing adjacent development was not clear and objective because the

requirement to “mitigate” and the methods of suggested mitigation (e.g.,

landscaping, additional setbacks, and screening) were not clear and objective.

A standard that requires that “traffic conflicts and hazards are minimized on-site

and off-site” as provided in an Article of the Code was not clear and objective

because the Council’s conclusion that the criterion was not satisfied did not

explain minimization to on-site and off-site conflicts and hazards, and the Codes

reference to a 32-page Article of the Code was too vague.

A standard that requires “there are adequate provisions for maintenance of open

space and other common areas” was not clear and objective where the City

engaged in a subjective analysis of whether the open space and common areas

were “adequate.”

In addition to the failure of the City’s standards to meet the clear and objective

requirement, the Council’s denial of a variance application was either similarly

tainted, or impacts of a grant of the variance could have been mitigated through

conditions. Not only did LUBA reverse the City’s decision but required that the

City approve the project in accordance with the Planning Commission’s decision

and associated conditions. Stay tuned because this is the rare case where LUBA

may consider a grant of attorney fees because the City Council’s findings were

made in complete disregard to the Petitioner’s complaints that the standards were

not clear and objective.



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F. Historic Designation and Owner Consent – ORS 197.772

Lake Oswego Preservation Society v. City of Lake Oswego, ___ Or LUBA ___

(LUBA No. 2014-009, Aug. 2014) In 1990, the City of Lake Oswego designated

the Carmen House, a historic farmhouse and barn, along with a number of other

properties within the City’s historic landmark inventory. The property owners at

the time, Wilmot and Gregg filed an objection to the designation. While the

City’s decision was pending review before LUBA, a fire on the property

destroyed the barn. The City’s decision was withdrawn for reconsideration and as

a result, the Carmen House was designated without the additional acreage and

without further objection. The Mary Caldwell Wilmot Trust, the current owner of

the property, sought to remove the Carman House’s historic designation under

ORS 197.772(3). The City Council granted the request to remove the historic

designation concluding that the term “property owner” is not limited to the owner

at the time the property was designated. The neighbors appealed that decision to

LUBA. LUBA began its analysis by focusing on the text and context of ORS

197.772(3). LUBA found the text of the provision not terribly helpful because

adding a phrase to limit qualifying property owners to those who made the initial

objection would insert language into the provision just as including post-

designation subsequent purchasers would also insert language, contrary to a law

governing statutory construction. Moving to the context, LUBA found the use of

the same phrase, “a property owner” in both subsection (1) and (3) of the statute

suggests that the two phrases have the same meaning and refer to the initial

objecting property owner. However, LUBA also noted that these two provisions

have “different, non-overlapping circumstances that occur at different times,”

suggesting an intent to describe different owners because the two categories are

“mutually exclusive.” What tipped the scales for LUBA was legislative history

indicating that the purpose of subsection (3) was to allow property owners who

“have been coerced into the historic property designation” to petition for removal.

When one of the legislators was asked whether a person who bought a piece of

property that had a historic designation could seek to remove it, the response was

“[w]e haven’t thought about that situation.” A proposed amendment was offered

that in cases where a local government designation occurs with concurrence from

the local government, the obligation “runs with the land.” LUBA found that

“taken together,” subsection (3) and the proposed amendment would treat

subsequent owners the same as the original owner. If the designation was

imposed over an objection, then a subsequent owner could request removal and

conversely, if the initial owner consented, the subsequent property owner could

not request removal. This “run with the land” amendment was removed before

final adoption. Without any discussion explaining why the amendment was

deleted, LUBA concluded that elimination of the additional language that would

have put “subsequent owners on the same footing as the property owner” provides

the “strongest inference” that the legislature did not intend this result. From this

analysis, LUBA concluded that, although it is “a close question,” the legislature

did not intend for the term “property owner” to include person who become



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owners of property after it is designated and the City erred in removing the

designation based on ORS 197.772(3).

III. STATEWIDE PLANNING GOALS

A. Goal 2 - Land Use Planning

Ooten v. Clackamas County, ___ Or LUBA ___ (LUBA No. 2014-069, Nov.

2014). Intervenor sought a comprehensive plan and zone change from Rural

(RRFF-5) to Rural Industrial (RI) to allow an existing paving business and

automobile, truck and heavy equipment storage repair. The RRFF-5 designation

was established in 1980 through an exception to Goal 3. OAR 660-004-0018(1)

provides that exceptions to one goal do not allow other uses or activities other

than those authorized by the exception. Changes in the types of uses or activities

require compliance with OAR 660-004-0018(2), requiring an analysis of

compliance with the other goals, whether the use will commit adjacent resource

lands to uses not allowed by the application goals, whether the proposed use is

compatible, consistency with the unincorporated communities rules of OAR 660-

022-0030 and industrial uses that were planned and zoned for those uses on

January 1, 2004. Petitioner argued that since the proposed industrial uses that

would continue were not the same as allowed in the RRFF-5 zone, a new

exception to Goals 3 and 4 was required under OAR 660-004-0018(2). The

county concluded that due to the 1980 exception, Goals 3 and 4 no longer applied

to the property. LUBA agreed with the petitioner – the 1980 exception took an

exception to Goals 3 and 4 only for the uses that were allowed in the RRFF-5

zone. LUBA went on to find that the requirement that the proposed uses be the

“same as the existing land uses” did not allow consideration the uses that

“currently exist” on the property. Remand was also necessary because it was not

clear what uses were justified as part of the 1980 exception. LUBA found that

this was not a collateral attack on the 1980 exception because it did not serve to

insulate all future changes in the plan and zoning designation. Next, Petitioners

challenged the county’s application of a number of comprehensive plan policies

providing that lands could be designated rural industrial where “areas have a

historical commitment to industrial uses.” LUBA agreed with the county’s

finding that existence of the business for the past 45 years was sufficient, without

regard to whether some of the uses were legally established. That said, LUBA did

remand that portion of the decision allowing for the inclusion of a new driveway

where there was no evidence of its historical existence. LUBA further rejected

the county’s decision for failing to adopt adequate findings explaining how

allowing industrial levels of development under the RI zone would be consistent

with the rural character of the area. Finally, Petitioner challenged the county’s

Transportation Planning Rule analysis that was premised on a traffic study

comparing the current traffic generated from the subject property against the most

intensive developable uses allowed in the RI zone. The analysis showed that the

amendment would have a “significant affect” that could be mitigated by some

roadway improvements. Petitioner argued and LUBA agreed that the proper



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baseline for comparison is the most traffic-generative use reasonably allowed in

the RRFF-5 zone and not the current use of the property that is arguably not

permitted.

Columbia Riverkeeper v. Columbia County, ___ Or LUBA ___ (LUBA No.

2014-017/018, Aug. 2014) Petitioners appealed an ordinance that adopted a

comprehensive plan amendment, zone change and reasons exception to allow for

expansion of the existing Port Westward Industrial Park, a rural industrial park.

The purpose for the expansion area was to accommodate future maritime and

large lot industrial users that would benefit from the proximate moorage and

deep-water access, existing infrastructure connections and energy generation

facilities. The types of uses that could be located within the expansion area

included conditional and permitted uses allowed in the Rural Industrial Planned

Development (RIPD) zone including “production, processing, assembling,

packaging, or treatment of materials, research and development laboratories and

storage facilities.” OAR 661-004-0022(3) identifies three special reasons that can

justify an exception to allow rural industrial uses on resource land including (1)

dependence on a unique resource; (2) inability to locate within the urban growth

boundary and (3) significant comparative advantage due to the location. The

county found that the exception was justified under all three reasons. Petitioners

first argued that the county failed to sufficiently identify the proposed “use” to

determine if the reasons exception was justified. LUBA found that the rule does

not require the identification of a specific proposed use but there must be a “close,

direct relationship between the ‘reason’ that is advanced for the exception, the

corresponding ‘proposed uses’ that fit with the reason and area analysis under the

exception criteria and the uses that are ultimately authorized in the exception

area.” However, LUBA found that the condition of approval limiting the uses to

those approved by the exception was adequate. LUBA found that land does not

have to be adjacent to water in order to be “water-dependent” for purposes of the

reasons rule. With regard to hazardous use as a reason for the exception, the

county must identify the proposed uses that fit within that reason. Moving to the

alternatives analysis required for taking a reasons exception, petitioners argued

that the county erred in failing to consider available vacant land within the

existing Port Westward industrial area as well as other alternative areas. Absent

evidence that vacant property is unavailable, such as a statement by a tenant of

unwillingness to sublease, or the existence of wetlands does not make vacant land

unavailable to accommodate the use. Further, the county’s alternatives analysis

considering other sites was flawed because sites were rejected solely because they

could accommodate only one sub-set of propertied industrial uses, where they

may have accommodated other sub-sets of proposed industrial uses. Finally, with

regard to finding that the “proposed uses are compatible with other adjacent uses

or will be so rendered through measures designed to reduce adverse impacts,” the

county found that compatibility will be achieved through subsequent review.

LUBA disagreed with this approach. The compatibility standard may be

considered with regard to multiple categories of uses with similar adverse

impacts, but every possible impact cannot be evaluated with such a large, open-



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ended range of unspecified unknown industries. Findings of compliance with

Goal 2 cannot be deferred to a subsequent permit proceeding. LUBA also

remanded because the county failed to explain that none of the proposed uses

would be urban and require a Goal 14 exception.

Landwatch Lane County v. Lane County, ___ Or LUBA ___ (LUBA No. 2013-

058, Feb. 2014). Petitioner appealed the county’s adoption of an ordinance taking

a reasons exception to Goal 14 to allow urban levels of industrial development on

existing rural lands within the unincorporated community of Goshen. LUBA

rejected petitioner’s challenge that the proposed industrial uses were already

permitted industrial uses pursuant to the unincorporated communities rule, OAR

660-022-0030(3) because the county’s findings adequately explained that the

public facilities and workforce necessary to serve this new area failed to comply

with the limitations of the rule. However, in addressing reasons that justify whey

the policies in Goal 14 should not apply, LUBA agreed with petitioner that the

existing Goshen regionally significant industrial area did not serve as a “natural

resource” that required such expansion area. “Industrially zoned and

development property, no matter how useful to man, is not in itself a ‘natural’

resource for purposes of OAR 660-014-0040(2).” The second alternative set of

reasons included rail dependent and/or related urban industrial uses on large sites

and urban uses on smaller sites and maintaining such a general demand did not

disqualify some smaller uses even though they were merely desirable. However,

with regard to considering alternative locations within the UGB that might be

available to these smaller uses, LUBA found that the county’s findings solely

lacking in any discussion. LUBA opined that the county may be able to

established that the limited set of commercial uses allowed within the exception

area are necessary to support the primary industrial uses without considering the

wide range of commercial uses more generally allowed. Further, the county erred

by failing to include findings of the impacts to wetlands as part of the ESEE

analysis requirement. Finally, the county’s findings failed to evaluate the

feasibility of providing a community sewer system necessary to serve the urban

industrial development which the exception concedes is likely to occur

B. Goal 4 – Forest Lands

Linstromberg v. Lane County, ____ Or LUBA ___ (LUBA No. 2013-096, Feb.

2014). Petitioners appeals a special use permit for a private park and campground

in a forest zone including “recreational opportunities” including six annual music

events – four of which may draw as many as 2,500 participants and last up to

three days and smaller events not limited in number so as to be allowed

continuously. LUBA characterized the proposed use as including an “event

venue component” of a nature that “simply cannot be characterized as a park or

campground that provides “recreational opportunities that are appropriate in a

forest environment.” OAR 660-006-0025(4)(e)(A) specifically prohibits

“intensively development recreational uses such as swimming pools, tennis



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courts, retail stores or gas stations.” LUBA concluded that the event venue was

not “appropriate in a forest environment.”

C. Goal 5 - Natural Resources, Scenic and Historic Areas, and Open Spaces

Delta Property Company LLC v. Lane County, ____ Or LUBA ____ (LUBA No.

2013-061, May 2014) Petitioner Delta Property Company, LLC appealed the

county’s decision denying its request for a special use permit to mine gravel and

aggregate resources on EFU-zoned land adjacent to Delta’s existing mine. LUBA

affirmed. The key issue in the case was the identity and scope of inventories of

mineral and aggregate natural resources in the Metro Plan and the Lane County

Rural Comprehensive Plan (RCP), and since petitioner’s proposed mining

expansion site must be on one or both inventories to qualify for the requested

special use permit. The Metro Plan is a regional comprehensive plan adopted by

Lane County and the cities of Eugene and Springfield in 1980. The area subject to

the Metro Plan includes the area outside the UGB but inside the Metro Plan area,

referred to as the “donut” and includes the subject property. In the donut area the

Metro Plan is the comprehensive plan, and both the City of Eugene and Lane

County must agree to amend the Metro Plan there. The Lane County Land Use

and Development Ordinance (LC) includes the land use regulations that govern

development in the donut area. Lane County is free to amend the LC in the donut

area without any requirement that the City of Eugene agree. Goal 5 as it existed in

1980 required local governments to do a number of things to comply with Goal 5.

First, it required that local governments prepare inventories of, among other

things, “mineral and aggregate resources.” Second, where uses were identified

that conflicted with inventoried mineral and aggregate resources, the “economic,

social, environmental and energy” (ESEE) consequences of the conflicting uses

had to be determined and programs developed to achieve the goal. Third, Goal 5

Guideline A(6) anticipated that the inventory of mineral and aggregate resources

would lead to protection of sites for mineral and aggregate removal. Goal 5

Guideline B(9) anticipated that mineral and aggregate sites would be planned for

a primary use (presumably mineral and aggregate extraction and processing), as

well as “interim” uses until the mineral and aggregate resource was needed and

“transitional” and “second use” after mineral and aggregate extraction and

processing was complete. The first Goal 5 administrative rule was not adopted

until 1981 – after the Metro Plan had been acknowledged.

Petitioner applied, under the new Goal 5 rule, for the expansion of an existing

mine, to include an additional 70 acres located adjacent. The existing mine is

zoned Sand and Gravel (S-G) by the county. The proposed expansion area is

designated Agriculture on the Metro Plan Diagram and is zoned exclusive farm

use (EFU). After an earlier 2008 failed effort to add the expansion area to the

Metro Plan inventory of significant aggregate resource sites (Metro Plan ISARS),

designate it Sand and Gravel on the Metro Plan Diagram and have it zoned S-G

by the county, petitioner took a new approach, seeking approval from the county

under ORS 215.213(2). ORS 215.213(2) authorizes mining of mineral and



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aggregate resources, subject to ORS 215.298. Its county analogue, LC

16.212(4)(y)(ii), requires that the site must be on an inventory in the Lane County

Rural Comprehensive Plan (RCP).

The county hearings officer found the proposed expansion area is not included on

the Metro Plan ISARS and the Board of County Commissioners. Petitioner

argued that the county erred in concluding that the proposed expansion area is not

included on the Metro Plan ISARS. LUBA first concluded that the county’s

decision was not entitled to deference because the Metro Plan was not adopted by

the county alone. When reviewing LCDC’s acknowledgment documents, LUBA

concluded that:“The Metro Plan has been amended to include a consolidated

resource map (Map 3, General Plan Technical Report) . . . . Resources mapped

include . . . sand and gravel”). Map 3 is the county’s 1C inventory. Like S&GWP

Figure E1, Map 3 includes the subject property. On that basis, LUBA sustained

petitioner’s first assignment of error.

Although the subject property is included on the Metro Plan ISARS inventory,

and thereby satisfies ORS 215.298(2), it is not included on the county’s RCP

inventory, which means it cannot be mined without violating LC 16.212(y)(ii).

However the RCP does not apply in the donut, while the Metro Plan ISARS does.

Petitioner argued that the county made a mistake when it adopted the language in

LC 16.212(y)(ii). LUBA first observed that in cases of mistake, the proper path is

to amend the code language rather than ignore it in the course of reviewing an

application. LUBA then discussed ambiguities in LC 16.212(y)(ii) that could have

allowed the county to conclude it should not be applied. However, the county did

not. Instead, the county maintained that it could impose restrictions on mining

under ORS 215.213(2). LUBA agreed, and denied petitioner’s second assignment

of error. After sustaining petitioner’s third assignment of error, which challenged

the evidentiary basis for the county’s determination that the ORS 215.296

“significant impacts test” had not been met, LUBA affirmed the county’s decision

of denial.

D. Goal 11 – Public Facilities and Utilities

Foland v. Jackson County, ___ Or LUBA ___ (2014-050, Sept. 2014). In 2007,

the Oregon Department of Transportation (ODOT) applied for statewide planning

goal exceptions for a proposed highway rest stop, most notably Goal 11 (Public

Facilities and Utilities), required because the rest area would connect to Ashland’s

sewage system. In 2009, the county approved the plan subject to a condition that

ODOT obtain city council approval to connect to city sewer and water lines.

Following three appeals, ODOT sought to modify the condition to receive water

for landscaping irrigation from the Talent Irrigation District (TID) rather than

from the City. The county board of commissioners approved and Foland appealed

to LUBA. Petitioner argued that the modification constituted a change in the

“types or intensities of uses” requiring a new Goal 11 “reasons” exception. LUBA

determined that the “type” would not change. The “water system” requiring the



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exception would not include non-potable sources such as those for landscape

irrigation. Water for human consumption would still be supplied by the city

system. The “intensity” would similarly remain unchanged as the only change

was to the source of landscape irrigation water. A “water system” for the purposes

of a Goal 11 exception only includes water to be used for human consumption;

modification of proposal to change the source of landscape irrigation water would

not constitute a change of this “system” and thus does not require approval of a

new “reasons” exception. The county’s decision was affirmed.

IV. LOCAL GOVERNMENT PROCEDURES

A. Impartial Tribunal

Oregon Pipeline Co. v. Clatsop County, ___ Or LUBA ___ (LUBA No. 2013-

106, June 27, 2014). LUBA remanded a Clatsop County Board of

Commissioner’s decision denying its application for approval of a natural gas

pipeline. This case has a long procedural history including a prior LUBA appeal

(LUBA No. 2010-109) and a mandamus proceeding which was appealed. This

appeal is of the County’s decision on reconsideration after it withdrew and

reversed its prior approval appealed in LUBA No. 2010-109. In the first

assignment of error, petitioner argued the County took two “actions” to avoid the

150 day rule in violation of ORS 215.427 (the 150 day rule) and its decision

should be reversed under ORS 197.835(10)(a). Petitioner argued the County

request for a record extension in LUBA No. 2010-109 and its decision to

withdraw its decision for reconsideration were both actions taken to avoid the 150

day rule and allow a newly elected commissioner to vote on the remanded

application. LUBA rejected this argument because the Court of Appeals had

already flatly rejected petitioner’s argument that the process on reconsideration,

allowed outright by ORS 197.830(13)(b) and OAR 661-010-0021 prior to filing

the record at LUBA, is subject to the 150 day deadline for final action. The

second assignment of error involves bias. LUBA found the bar for disqualification

to be set high and, turning to the actions of the three challenged commissioners,

concluded the actions of two commissioners were insufficient to demonstrate bias

but one, who for over a year demonstrated “clear and unmistakable” evidence of

bias, should have refrained from voting on the decision to pull the approval back

for reconsideration.

B. Standing

Devin Oil v. Morrow County, ___ Or LUBA ___ (LUBA No. 2014-010 and -011,

Order, Sept. 2014) LUBA considered a motion to take evidence considering a

number of jurisdictional challenges including standing. On October 17,

petitioner’s counsel sent an email to the planning director requesting that the

county provide it with information regarding Loves extension request and that the

county provide petitioner an opportunity to comment on the application.

Petitioner did not ask that this letter be included in the record and as such,



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intervenor argued before LUBA that this letter was not properly before LUBA

and did not constitute an appearance as necessary to confer standing. LUBA

disagreed finding that an appearance requires nothing more than taking a position

and the petitioner had standing.

Navickas v. Jackson County, ___ Or LUBA___ (LUBA No. 2013-087, January

21, 2014). Petitioner appealed a hearings officer’s dismissal of his local appeal of

a planning department site plan approval for a parking lot at Mount Ashland Ski

Area. Jackson County Land Development Ordinance (LDO) 2.7.5(D) provides

that a decision made by staff without an evidentiary hearing may be appealed by

any person or entity who is “adversely affected or aggrieved by the decision,

whether or not they received notice.” LUBA notes that this requirement is also

stated in ORS 215.416(11), with which the county code provision must comply.

Petitioner’s local appeal was timely, but the hearings officer concluded he lacked

standing. The sole issue presented is whether petitioner, who lives 42 miles from

the site, is entitled to appeal a staff decision of approval as a party (1) “adversely

affected” or (2) “aggrieved.” Petitioner asserted that the parking lot would affect

water quality and adversely affect his use of the Pacific Crest Trail. He also stated

that he used the proposed parking lot area to snowshoe towards a geographical

feature, whose location he did not identify, and he would no longer be able to do

so. For these reasons, he contended he was “adversely affected.” The hearings

officer found these problems to be too speculative to constitute an “adverse

effect.” LUBA agreed, relying on Warren v. Lane County, where the court of

appeals rejected as too speculative a claim construction work might make the

petitioner late to work, with a resultant loss of income and might interfere with

timely medical care, causing irritation or aggravation.

Elle Belle Bend, LLC v. City of Bend, ___ Or LUBA ___ (LUBA No. 2013-115,

March 2014) Petitioner appealed a decision by the city denying its appeal of a

decision by the planning director, which approved a site plan and conditional use

permit for an accessory dwelling unit (ADU) on land located in the city. Bend

Development Code (BDC) 4.1.1110 allows a local appeal from a planning

director’s decision made without notice to: (1) a “party,” defined to mean anyone

who participates at a hearing, who provides written evidence or “whose property

would be burdened by a solar access permit”; and (2) a person entitled to notice

and to whom no notice was mailed. After the city made the challenged decision,

petitioner filed a timely appeal. The city issued a “Notice of Invalid Filing” that

concluded petitioner’s appeal was invalid. The city explained that petitioner was

not entitled to notice of the challenged decision, since petitioner’s property was

outside the 250-foot notice area for which notice is required under BDC

4.1.420A, petitioner. (Note: ORS 227.175(10)(a)(A) requires only that notice be

given to owners of property within 100 feet when the subject property is wholly

or in part within an urban growth boundary.) Under BDC 4.1.1110, petitioner was

not a “party,” since the decision was made without notice or hearing; nor was

petitioner “a person entitled to notice,” since petitioner’s property was outside the

notice area. ORS 227.175(10)(a)(A) allows one designated by the local governing



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body “to approve or deny an application for a permit without a hearing if the

hearings officer or other designated person gives notice of the decision and

provides an opportunity for any person who is adversely affected or aggrieved, or

who is entitled to notice . . . to file an appeal.” The inclusion of “any person who

is adversely affected or aggrieved” among those entitled to appeal is not found in

the BDC. Consequently, the BDC is inconsistent with the statute. When there is

a conflict between a provision in the city code and a statute, a conflict in which

the statute will always prevail, even when the city code has been acknowledged.

LUBA ordered the city to consider petitioner’s local appeal.

V. LUBA JURISDICTION, PROCEDURES AND RULES

A. NITA Formalities

Conley v. City of Eugene, (Order, LUBA No. 2014-020, Feb. 2014). Petitioner

filed a document “appealing the approval” of a development by the City of

Eugene. The document did not include the filing fee, the proper caption, and was

not served on the City or any parties who participated in the proceeding below.

LUBA granted petitioner 14 days to file an amended notice of appeal in

conformance with its rules.

B. Jurisdiction

Egge v. Lane County, ___ Or LUBA ___ (LUBA No. 2014-031, July 2, 2014) In

2004 petitioner obtained a discretionary permit for the operation of a gravel mine.

Among the conditions imposed was one that prohibited truck traffic on McKenzie

View Drive east of Egge Road. After petitioner admittedly violated the condition,

and neighbors the county planning director issued an enforcement order imposing

a fine of $990 per day. Petitioner appealed to LUBA, arguing the hearings officer

should have calculated the fine using only the factors set forth in LC 5.017(5),

rather than using the point system in the Lane Manual. In response, the county

argued, the hearings officer’s decision is excluded from the statutory definition of

“land use decision” and therefore is not subject to LUBA’s jurisdiction. LUBA

agreed and, upon petitioner’s contingent motion, transferred the appeal to circuit

court. LUBA reasoned that, while decisions to enforce a local government’s land

use regulations can constitute “land use decisions,” ORS 197.015(10)(a)(A)

defines a land use decision to be a decision by a local government that “concerns

the application of a ‘land use regulation.’” As defined in ORS 197.015(11), a

land use regulation means “any local government zoning ordinance, land division

ordinance adopted under ORS 972.044 or 92.046 or similar general ordinance

establishing standards for implementing a comprehensive plan.” ORS

197.015(10)(b)(A) excludes from the definition of “land use decision” a decision

of a local government made under “land use standards that do not require

interpretation or the exercise of policy or legal judgment.” Since the condition is

not itself a land use regulation, a decision to enforce it because it has not been

complied with is not, of itself, a land use decision.



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Jensen v. City of Eugene, ___ Or LUBA ___ (LUBA No. 2013-108/109, April

2014) Petitioner challenged two building permits that were issued for the same

lot, rather than two adjusted lots, and therefore violated city code provisions that

prohibit more than one dwelling per lot. LUBA found the building permit

decisions were land use decisions as defined by ORS 197.015(10)(a) and not

subject to the ministerial exception in ORS 197.015(10)(b)(A) because they were

issued before the deeds were recorded to complete the lot line adjustment between

the boundaries of the two lots, which LUBA found to be a discretionary decision.

If the had included the recorded deeds required to complete the lot line

adjustment, LUBA found the City’s decision would have qualified under the

ministerial exemption as well as the building permit exemption because the City

would not have had to decide if it could issue the building permits before all steps

to complete the lot line adjustment were finished. LUBA rejected petitioner’s

other arguments that the permits were “statutory” land use decisions and denied

the remaining arguments relating to mootness, timing and form of the

conveyances and that the adjusted lot was not a lot under the City Code.

Baker v. City of Gearhart, ___ Or LUBA ___ (LUBA No. 2013-069, April 2014)

Petitioner appealed a letter from the city attorney explaining that a 2009 building

permit and subsequent construction did not result in the approval of more than

one dwelling as required by the code and that there was no evidence that the area

included in the addition was being rented for short term use. LUBA found that

petitioner’s challenges were directed entirely at the 2009 building permit that was

beyond appeal. The letter was not a new appealable decision under ORS 197.015

and the appeal was dismissed.

Olsen Design & Development, Inc. v. City of Monmouth, ___ Or LUBA ___

(LUBA No. 2013-113, March 2014). Petitioners appealed an ordinance

approving a comprehensive plan map amendment changing the plan designation

of 7.46 acres of property from Low Density Residential (LDR) to Industrial.

Intervenors own a 26.29-acre property located outside of the city’s limits, in Polk

County, but inside the city’s urban growth boundary. An intergovernmental

agreement (IGA) between the city and Polk County specifies that the city’s

comprehensive plan is “the controlling document in guiding development within

the UGB,” and requires the county to “appropriately zone any affected properties.

Intervenors sought to amend the city’s comprehensive plan map designation,

expanding the Industrial-zoned area by 7.46 acres in order to provide an area for

sales of wood products from storage bins located away from the production

facility and to allow for more storage of existing piles of the wood product. As

provided by the IGA, the city processes applications for a comprehensive plan

amendment for property located inside the city’s urban growth boundary (UGB)

but outside of the city’s boundaries. For that reason, intervenors applied to the

city for the plan designation amendment. Intervenors challenge LUBA’s

jurisdiction over the decision, arguing that it was not “final,” because under the

terms of the IGA, the city made a “recommendation” to the county for the re-

designation, it was the county that would actually be making a final decision.



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LUBA disagreed, pointing out that in the IGA the county recognized the city’s

comprehensive plan “as the controlling document in guiding development within

the UGB.” Nothing in the IGA grants the county any decision making authority

over city comprehensive plan designations for property within the UGB. LUBA

rejected each of the petitioner’s challenges.

Brodersen v. City of Ashland, ___ Or LUBA ___ (LUBA No. 2013-032, Feb.

2014). LUBA dismissed an appeal of a building permit finding that determining

the slope and the areas affected by the various slope determinations were “clear

and objective land use standards” and thus exempt fro the statutory definition of

land use decision.

Lamar Outdoor Advertising v. City of Tigard, ___ Or LUBA ___ (Order, LUBA

Nos 2013-085/090, Feb. 2014). Two separate administrative decisions revoking

previously issued sign permits were “land use decisions” that required the

exercise of discretion because determining whether the signs were freestanding or

electronic message center signs required the exercise of discretion.

Curl v. Deschutes County, ___ Or LUBA ___ (Order, LUBA Nos. 2013-086/095,

Jan. 2014). Petitioners appealed the county’s issuance of a LUCS issued to DEQ

for financing to allow intervenor to pipe approximately 4,500 linear feet of the

Pilot Butte Canal adjacent to EFU-zoned lands owned by Petitioners. The

county’s LUCS concludes that piping the canal is an outright permitted use in the

sr-2.5 zone. First, LUBA agreed with the petitioners that they were “adversely

affected” by loss of enjoying the sight and sound of water flowing in the adjacent

canal. Second, Petitioner argued, and LUBA agreed, that an interpretation was

required to determine whether the proposed piping qualified as a “utility” in that

the utility uses permitted appeared to contemplate urban domestic water systems

and not agricultural irrigation systems and some of the utility uses are permitted

outright and some were conditionally authorized. Finally, the intervenor claims

that the subject LUCS was excluded from LUBA’s jurisdiction pursuant to ORS

197.015(10)(b)(H), which excludes particular types of LUCS decisions. LUBA

found that there was no previous land use decision that “encompasses” the

proposed piping as necessary to fall within the first LUCS exception. Given that

judgment must be exercised in order to determine whether the use is allowed

without review, it did not fall within the second LUCS exception, and the decision

at issue was the county’s issuance of the LUCS rather than DEQ’s decision

regarding financing, therefore it did not fall within the third exception.

Beaumont-Wilshire Neighbors for Responsible Growth v. City of Portland, ___

Or LUBA ___ (LUBA No. 2013-031, Dec. 2013). Petitioners appealed a building

permit for a four-story, 50-unit apartment building with spaces for commercial

uses on the ground floor located at NE 43rd Avenue and NE Fremont Street. The

city had adopted a Stormwater Management Manual (SWMM). Petitioners

argued that the proposed drywell for the development violated the placement

limitations contained in the SWMM. The city argued that the SWMM is not a



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land use regulation, and LUBA did not have jurisdiction over this assignment of

error. LUBA disagreed and stated the city had not correctly framed the

jurisdictional question. Instead, LUBA determined that the appeal is of a

challenged building permit, which is a land use decision subject to LUBA’s

jurisdiction under ORS 197.825(1). Further, LUBA’s scope of review authorizes

it to reverse or remand a decision where the local government “improperly

construed the applicable law.” Moreover, LUBA determined that applicable law

is not limited to land use regulations. LUBA remanded, in part because the

drywell encroached on the setback contained in the SWMM (other grounds for

remand were related to the location of a proposed barbeque and trellis).

Lekas v. City of Portland, ___ Or LUBA ___ (LUBA No. 2013-079/083, Dec.

2013). The general rule requires that a petitioner file a LUBA appeal 21 days

after the decision becomes final unless the local government fails to provide a

hearing or the final decision is significantly different from the proposed action

described in the notice of hearing. In this case, the city approved an adjustment to

a side setback to accommodate a garage. Petitioners challenged this approval 21

days after the decision was made arguing that the notice failed to explain that the

adjustment was part of a larger proposal to add a third story and walkway to the

proposed garage. LUBA disagreed finding that the proposed walkway was not

located within the adjusted setback area, nor was it located on the same side of the

garage. Petitioner also challenged the subsequent building permit approval that

was issued on June 19 but not appealed until August 30. The city moved to

dismiss this appeal arguing that the Petitioners knew about the issuance of the

building permit on July 27 and were required to file their appeal not late than 21

days after that date under ORS 197.830(3)(b). LUBA agreed and dismissed both

appeals.

Terry Hydr Inc. v. Metro, ___ Or LUBA ___ (LUBA No. 2013-025, Nov. 2013)

Metro adopted a resolution approving the Ice Age Tonquin Trail Master Plan

establishing a preferred trail alignment crossing petitioner’s industrial-zoned land,

trail design guidelines and as well implementation strategies for cities and

counties. Metro challenged LUBA’s jurisdiction to hear the case arguing that the

trail plan includes only recommendations and guidelines and does not amend any

part of the functional management plan. LUBA agreed. With regard to whether

adoption of the plan by Metro was “final”, LUBA found that because the

document consisted of largely non-binding recommendations for local

governments or Metro to use in adopting future comprehensive plan and laud use

regulations, the decision is not a final and appealable decision under ORS

197.015(10)(a). In sum, to constitute a final decision, “the decision must actually

decide something.” The case was dismissed.

Mariposa Townhouses v. City of Medford, ___ Or LUBA ___ (Order, LUBA No.

2013-046, Sept. 2013). Petitioner appealed the city’s determination that a

methadone clinic is allowed within a particular zone. The City moved to dismiss

arguing that the decision fell within the exception to a “land use decision” for



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decisions “that do not require interpretation or the exercise of policy or legal

judgment.” LUBA denied the motion relying on the definition of “permit” under

ORS 227.60(2), which includes decisions determining the appropriate zoning

classification for a use and ORS 227.175(11)(b), requiring that permits be entered

into a registry and are limited land use decisions subject to LUBA jurisdiction.

C. Time Limits

Stop the Dump Coalition v. Yamhill County, ____ Or LUBA ____ (LUBA No.

2014-023, May 2014), On April 11, 2014, LUBA issued an order settling the

record noting that if petitioners had other objections, they could file further

objections within 14 days. On May 6, 2014, intervenor filed a motion to dismiss

because the petition for review was not filed within 21 days. On May 8, 2014,

petitioner filed a record objection. LUBA found the deadline for filing a brief is

strictly enforced. LUBA explained that while a late filed record objection does

suspend future deadlines, a record objection filed after the deadline for the

petition for review has passed does not revive that expired deadline. Failure to

comply with the deadlines for filing a petition for review is not a technical

deadline. “Time is of the essence” and requires automatic dismissal when an

opening brief is filed late.

D. Record

Terra Hydr Inc. v. City of Tualatin, ___ Or LUBA ___ (Order, LUBA No. 2013-

016, August 2013). Providing a reference to an electronic link to an adopted

revised transportation system plan within the record is an “entirely insufficient

means to provide a copy of the document to LUBA and the parties,” especially

when the link does not work.

E. Raise it or Waive it

Tillamook People’s Utility District v. City of Tillamook, ___ Or LUBA ___

(LUBA No. 2013-035, Jan. 2014). The city’s denied a conditional use permit for

an electric transmission line on the grounds that the applicant/petitioner failed to

comply with a conditional use criterion requiring that the proposed use will not

“alter the character,” “limit,” or impair” surrounding permitted uses. Petitioner

argued that the city council should have denied the appeal of the planning

commission’s decision because the council’s review was on the record and no

party raised issues regarding that particular conditional use criterion. The parties

agreed that the local raise it / waive it provision was to be interpreted consistently

with the state statutory analogues, ORS 197.763(1) and 197.835(3). The general

rule, as restated by LUBA, is that “a petitioner need not have cited to the precise

sections of the zoning ordinance where approval criteria appear, so long as an

issue is raised with regard to the subject matter of the criteria.” However, where

there is a more detailed, structured analysis required, such as in the case of TPR

or Goal 9, LUBA has required more than general arguments about traffic or

industrial land need. The comments presented before the planning commission



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were statements that construction of the transmission line, “effectively freezes

development” and restrictions will “reduce development opportunities” for

affected neighboring properties. LUBA found these comments gave the city fair

notice that the issue was presented. Moving to the merits of the appeal, the

petitioner challenged various findings identifying evidence in the record disputing

those conclusions. LUBA found that petitioner “selectively quotes” from the

findings so as to challenge a finding “the city council did not adopt.” LUBA also

notes that in challenging other findings, the petitioner fails to acknowledge the

previous sentence providing context. The city’s decision was affirmed.

Savage v. City of Astoria, ___ Or LUBA ___ (LUBA No. 2013-059, Oct. 2013).

In challenging a zone change decision, Petitioner argued that the decision failed to

comply with the Transportation Planning Rule (TPR). The City responded that

this issue was not raised and was waived under ORS 197.835(3). Petitioner’s

single letter objection asserted misinterpretation of a local code requirement of

further a “community purpose” by meeting or furthering a goal including meeting

“transportation demands.” Petitioner’s objection made no mention of the TPR

generally or OAR 660-012-0060 specifically. At best, LUBA found, the

argument raised a generalized traffic issue, without citing the TPR or any of the

substantive requirements of the TPR, and raising general issues without more is

insufficient. Statements by staff indicating that the TPR is satisfied is insufficient

to preserve an argument that the TPR is not satisfied in an appeal. Failure to

identify the TPR in the hearings notice does not excuse the obligation because the

TPR is not a local plan policy or regulation.

F. Motion to Take Evidence

Stop Tigard Oswego Project, LLC v. City of West Linn, ___ Or LUBA ___

(Order, LUBA NO. 2013-021 and -022). In this appeal one group of petitioners,

STOP, filed a 50-page brief challenging permit approvals for a new water pipeline

and water treatment plant expansion. One of STOP’s allegations of error was that

City Councilor Jones engaged in undisclosed ex parte communications with the

applicant. The other group of petitioners, More et al. filed a 50-page brief raising

procedural and substantive challenges to the pipeline approval that did not include

any allegations of error relating to the activities of Councilor Jones. The More

Petitioners subsequently filed a motion to take evidence seeking to depose the

councilors, the mayor and the city manager in an attempt to support the

assignment of error raised in the STOP brief. As an initial matter LUBA

questioned whether a person who is a party to one appeal may file a motion to

take evidence in a different appeal to which that person is not a party. LUBA

noted that consolidation does not affect the status of each appeal and neither set of

petitioners intervened in the other appeal. Further, incorporating the briefs of

other petitioners is ineffective if it will lead to the total brief length exceeding 50-

pages when no extension for an over-length brief has been granted. As for the

merits, LUBA denied the motion to take evidence finding that the only evidence

was that communications occurred between a decision-maker and staff, which are



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not ex parte contacts. Simply because the city manager was in contact wit both

the councilor and the applicant does not necessarily constitute an ex parte contact

and inferences otherwise were not supported by the affidavits and other

documents relied on by More.

VI. LUBA SCOPE OF REVIEW

A. Local Code Interpretation and Applicable Standards

Beaumont-Wilshire Neighbors v. City of Portland (LUBA No. 2014-0008, May

2014) Petitioners appealed a decision by the city that granted a building permit for

a four-story 50-unit apartment building with spaces for commercial uses on the

ground floor. This was a case heard on remand. In Beaumont-Wilshire I LUBA

found that the approved drywell intruded into a 10-foot setback imposed by the

storm water management manual (SWMM). On remand, it was determined that

moving the drywall further from the building would intrude into the require 5-foot

setback from the rear property line. Although the SWMM is not one of the city's

land use regulations, because LUBA had jurisdiction over the original building

permit that applied land use regulations, LUBA found that it had jurisdiction over

an appeal of the remanded decision as well. In order to deviate from the 10 foot

setback requirement, intervenor applied for an adjustment to the Bureau of

Development Services Appeals Board. The Board granted the request finding that

the approved modifications were consistent with the intent of the code and do not

lessen health, safety and structural requirements. Petitioners argued that the

Appeals Board lacked authority to waive the setback standard because it

implements the Oregon Structural Specialty Code and such waivers are allowed

only upon a finding of "unique circumstances" require a waiver. The City

responded that the SWMM does not require a finding of "special circumstances"

and that section applied only where the plumbing inspector rejects an application,

which was not the case. LUBA agreed with respondents finding that the Appeals

Board did not "waive" the 10-foot setback requirement. Instead it approved a

drywell that was closer than 10 feet to any building which the Oregon Plumbing

Special Code expressly allows. LUBA found that petitioner failed to explain why

the Oregon Structural Specialty Code standards would apply to a request to

deviate from a plumbing code setback. The decision was affirmed.

Friends of Hood River v. City of Hood River, ___ Or LUBA ___ (LUBA No.

2012-050, March 2013 and again, LUBA No. 2013-064, Dec. 2013, rev’d in part,

___ Or App. ___ (May, 2014, A155860). LUBA twice remanded the city’s

decision to grant a conditional use and preliminary site approval for a 45,000

square foot, four-story, 88-room hotel; a 20,000 square foot office building; and

associated parking located on the waterfront near the mouth of Hood River. In

the first iteration of this case, LUBA found that the city’s decision did not

adequately analyze flooding policies, strategies, and standards found in the plan

that constituted mandatory standards that the application must meet. With regard

to plan goal 7, the findings address the language of the goal itself and the matter



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was remanded for additional consideration of whether the goal 7 policies are

mandatory criteria and if so, whether they are satisfied.

On remand, the city again approved the application including findings applying

some of the comprehensive goals and policies and in other cases, explaining why

they either do not apply or are implemented by other land use regulations. All

parties agreed that the subject property was largely located within the 100-year

floodplain but disputed the application of two comprehensive plan policies

providing that “no permanent structure” was allowed within a “flood hazard area”

unless the structure meets the criteria set forth in the FP (Floodplain) Overlay

zone. The city argued that since the subject property was not mapped FP, the FP

Overlay criteria did not apply. There were, in effect, two different types of

floodplains, those that are subject to the FP Overlay and those that are not.

LUBA found this interpretation implausible and the Court of Appeals agreed.

LUBA found that the city’s interpretation read in an additional limitation “already

zoned FP” that does not appear in the plan policy and inconsistent with the

purpose of requiring compliance with the FP limits on construction, even though

the newly identified 100-year floodplain has not yet been subject to the FP

overlay zone. However, LUBA’s corollary finding that compliance with these

plan policies requires that the city locate the 100-year floodplain through mapping

and could be accomplished through other means. This decision was remanded,

once again.

Wolfe v. City of Medford, ___ Or LUBA ___ (LUBA No. 2013-080, Feb. 2014).

Petitioners appealed a decision that exempts proposed construction of an assisted

living facility from site plan review. The subject property contained a number of

pre-existing buildings that were largely vacant. Site plan review was not required

for the construction of a new building that does not increase motor vehicle trip

generation by more than 10 average daily trips. The initial proposal was to

construct three buildings, two of which were constructed by a skywalk containing

a hallway and veranda. Initially, city staff concluded that the site plan review

exemption did not apply because the proposal was for two buildings instead of

one. Subsequently, the applicant expanded the skywalk to include a dining room

and the city planning director, based solely on an unexplained statement by the

building official, concluded that the proposal contained a single building.

Petitioner argued that the city’s decision qualified as a statutory permit and

required compliance with quasi-judicial land use procedures. Although LUBA

agreed that the proposal qualified as “development” that was also “discretionary,”

it did not “approve a proposed development of land” and therefore, was not a

“permit.” However, LUBA also found that granting an exception based solely on

the uses occurring within the skybridge connecting the two buildings bore no

relation to the express language of the exemption, its context, purpose or policy

for the provision. Further, given the lack of explanation for the findings, LUBA

found that the interpretation lacked sufficient explanation to allow review. LUBA

also found that the city’s determination that the project would not increase motor

vehicle trips by more than 10 average daily trips was implausible when the



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previous use comparator was based on ITE Manual trip generation assumptions

for uses that are no longer located on the site but for which business licenses were

issued. Looking back to historic business license uses was unrelated to any

language within the exception provision and inconsistent with the policy to

exempt smaller buildings with smaller impacts.

The Flight Shop, Inc. v. Deschutes County, ___ Or LUBA ___ (LUBA No. 2013-

073, January 2014) Petitioners appeal a decision by a county hearings officer

approving an application for site plan review for a new aviation fueling station at

the Bend Municipal Airport. The fueling station would be located on the east side

of the airport runway. The county’s Transportation System Plan (TSP), which is

part of the county’s comprehensive plan, incorporates the city’s Airport Master

Plan and drawings associated with it. One of the drawings shows “future” fuel

storage on the east side of the airport runway. The challenged decision finds that

because Deschutes County Code (DCC) 18.76, which governs development in the

Airport Development (AD) zone, does not expressly require consistency with the

Airport Master Plan, and because the fueling station is a use permitted outright,

the Airport Master Plan need not be considered. Petitioners argued that because

DCC 18.76.010 provides, “The purpose of the AD zone is to allow for

development compatible with ongoing airport use consistent with the Deschutes

County . . . Comprehensive Plan,” and because the TSP describes the airport

master plan as the “guiding document for airport planning and development,” the

hearings officer should have considered the airport master plan in making her

decision of approval. LUBA agreed, pointing out that a comprehensive plan is

frequently a potential source of approval standards or requirements with respect to

development approvals, and noting that ORS 197.175(2)(d) requires making “land

use decisions and limited land use decisions in compliance with the

acknowledged plan and land use regulations.” The decision was remanded.

Schnitzer Steel Industries. Inc. v. City of Eugene, ___ Or LUBA ___ LUBA No.

2013-038, Sept. 2013, aff’d without opinion, 260 Or App 562, 318 P3d 1146

(2014).Petitioners appeal a hearings officer’s decision that affirms the planning

director’s interpretation of the Eugene Code (EC) concerning the scope of a

“scrap and dismantling yard” (SADY) use permitted in the city’s Heavy Industrial

(I-3) zone. LUBA affirmed. At issue is an interpretation of the EC. Because the

challenged decision was made by a hearings officer rather than the local

governing body (city council), no deference is due. Petitioners took various

approaches in arguing that the city improperly concluded that a metal shredder

falls within the scope of the SADY use permitted in the I-3 zone. The planning

director and, subsequently, the hearings officer relied on dictionaries and terms of

common usage. Petitioners agreed that it is appropriate to use a dictionary to find

the meaning of words that are not defined in an ordinance, but argue that where a

phrase like “scrap and dismantling yard” is concerned, it is not appropriate to

“cobble together” a number of word definitions from a dictionary. Petitioners

argued that the hearings officer should instead have considered the recycling

industry’s accepted practices and technical terms as context for interpreting the



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EC. Notwithstanding the absence of any specific legislative history, petitioners

essentially deduce a “what must have been intended” legislative history.

According to petitioners, the City Council must have intended to use industry

definitions when it adopted the EC language, because the five different recycling

uses in the EC closely align with the accepted steps and practices in the metals

recycling industry. LUBA decided that industry definitions do not substitute for

actual legislative history. LUBA acknowledges that because the term “scrap and

dismantling yard” is ambiguous, the hearings officer could have concluded it did

not include a metal shredder. However, just because the city could have agreed

with petitioners does not mean that the city misconstrued the applicable law by

relying on dictionary definitions of the component words and terms to conclude

that the “use” was metals recycling and that the metal shredder was properly

viewed as a part of that use and was therefore a permissible piece of equipment in

a SADY.

Foland v. Jackson County, ___ Or LUBA ___ (LUBA No. 2013-082, Jan. 2014).

The appeal is the third challenge to the county’s approval of an ODOT application

to build a rest stop. In Foland II, LUBA remanded the county’s decision for

failing to interpret a local code standard requiring that “adequate public utilities

and services can be provided to the property.” Petitioner argued that “adequate

services can be provided” requires more than merely a determination that the

pipes are sufficiently sized so as to accommodate additional water flows. LUBA

disagreed finding that the standard of adequacy is where the services” can be

provided,” which does not require assurances that a service provider will choose

to provide the service. LUBA also rejected Petitioners’ challenge that the

county’s interpretation is reversible because it is inconsistent with the county’s

initial interpretation in 2009 that lead to the imposition of a condition of approval

requiring that the City of Ashland provide water service to the site. LUBA found

the county’s 2009 decision did not interpret the local code provision in the first

instance.

B. Adequate Findings

Hess v. City of Corvallis, ___ Or LUBA ___ (LUBA No. 2014-042, Oct. 2014).

Petitioners challenged a decision approving a comprehensive plan map and

zoning map amendments, a concept and detailed development plan and a

subdivision in order to develop a 296-unit apartment building. The decision

findings consisted of 121 single-spaced pages plus the adoption by reference of

the staff report and exhibits including several hundred documents comprising

more than 1,000 pages. First, petitioner’s argued that the findings were

inadequate given their length alone and that given that length, they contained

inconsistencies that were not resolved by the conflict resolution provision. LUBA

found that the city’s incorporation of application narratives by reference were

adequate to serve as findings but the incorporation of attachments to those

narratives, when the findings make no particular reference to those attachments,

was overbroad and were not considered as part of the findings. Further, the city’s



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incorporation of “supplemental information” submitted by the applicant or city

staff failed to qualify as findings because they were not so labeled and easily

recognized by LUBA as findings within the record. Next, LUBA rejected a

number of petitioner’s challenges to the city’s interpretation of various plan

policies finding that the petitioner failed to identify any language in the policy,

any purpose or policy that the interpretation was inconsistent with. LUBA also

rejected challenges to the adequacy of the findings noting that findings are not

inconsistent when different findings respond to different policy demands and

deserve deference when they include a balancing of policy objectives, particularly

when faced with a highly subjective criterion. A different petitioner challenged

the city’s findings with regard to Goal 12, where the city concluded that the plan

and zone changes would not significant affect any existing or planned

transportation facilities because although the property would generate more daily

trips compared to the former plan and zoning, the proposed designations will

generate fewer trips during the AM and PM peak hours. Petitioner argued that the

traffic study must be based on actual local counts taken from similar developed

student housing uses in the vicinity based on “per bedroom” rather than relying on

the ITE manual basing trips on the number of apartments. LUBA rejected this

argument finding no provision in the local plan or code that required the city to

base its decision on local traffic data. However, in response to petitioner’s

challenge that the findings failed to respond to the opposition transportation

engineer’s assertions that student housing generates more trips than typical multi-

family apartments, LUBA agreed. LUBA found that the only document

responding to this testimony was contained in “supplemental information”

adopted by reference that, because it was not referenced in the findings by date,

title or subject, and LUBA could not recognize it as part of the city’s findings, it

was not considered. Other more general findings regarding the TPR that did not

address the student housing traffic generation numbers were inadequate. The

decision was remanded.

C. Substantial Evidence

Stevens v. City of Island City, ___ Or LUBA ___ (LUBA No. 2013-036, August

2013, aff’d Feb. 2014). Petitioner appealed a home occupation permit granted to

allow a commercial trucking operation and maintenance facility. The local code

limits home occupations in this case to 600 square feet and Petitioner argued that

the evidence in the record suggested the activities would take up more than 600

square feet. LUBA agreed, the record failed to include evidence showing that

trucks are not worked on in their full configuration, but the cab and truck. There

was a lack of evidence showing where office functions would be maintained.

Finally, LUBA remanded the decision because the evidence failed to establish

that a condition limiting the operation to one employee would be met because the

record reads as if the applicant employs a mechanic, as well as drivers, who could

be onsite at the same time. Based on its reading of the record, LUBA determined

that no condition of approval adequately limits the number of non-family

employees on the site and remanded for further consideration by the City.



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Finally, LUBA determined that the city did not adopt adequate conditions of

approval to prevent the start up and maneuvering of trucks during non-business

hours. The Court of Appeals held that LUBA correctly applied the standard of

review. LUBA used evidence in the record to conclude that Petitioner had failed

to show that no reasonable person could come to the city’s decision to grant the

permit, especially with the imposed conditions. This analysis is consistent with

the substantial evidence review standard.

VII. OREGON COURT OF APPEALS PROCEDURES – MOOTNESS

Housing Authority of Jackson County v. City of Medford, 265 Or. App. 648, ___ P3d

___ , 2014 (Oct. 2014). In 2012, LUBA remanded a decision denying a Housing

Authority request to construct a multi-family housing project. One of the reasons for

the remand was that the Mayor did not disclose certain ex parte contact, in violation

of ORS 227.180. The City petitioned the court for further review but while the case

was pending, the parties entered into a settlement agreement agreeing to smaller

housing project on the subject site and additional housing at another site. The parties

then moved to reactivate the appeal. The court issued an order asking the city to

show cause why the city’s petition was not moot in light of the settlement agreement.

The city responded that having the court consider whether the Mayor engaged in ex

parte contacts will “correct an injustice” and therefore, have a practical effect on the

rights of the parties. The court disagreed finding that “a perceived slight to the

Mayor’s reputation” is not a “practical harm” and the matter was dismissed as moot.



Documents

2014 LAND USE CASES A Review of Significant 2014 … LAND USE CASES A Review of Significant 2014 LUBA, Oregon Court of Appeals, Oregon Supreme Court and Federal Cases Carrie Richter