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1625 Sherman Ave. LLC v. City of North Bend

Where a local government’s findings merely respond to a petitioner’s arguments, LUBA will not find, without more, sufficient grounds for concluding that the local government exercised policy or legal judgment in reaching its decision.

• Land Use

Oregon Coast Alliance v. Tillamook County

Under OAR 660-004-0022(1), a local government it may approve a “reasons” exception upon demonstration that the subject site has specific, unique considerations that require the exception to meet a need under Goals 3 through 19.

• Land Use

1000 Friends of Oregon v. Linn County

(1) Where a petition for review is deficient under OAR 661-010-0030(2) (relating to formatting requirements) and (4) (relating to substantive requirements), LUBA will hold that a correction to the petition’s formatting alone is allowable under OAR 661-010-0030(3) (as distinguished from an amendment to the petition’s substance which, under OAR 661-010-0030(6), is allowable only with permission from LUBA). (2) Where a petitioner’s claimed errors are discernable from their petition for review despite their failure to set out separate assignments of error, LUBA will hold that the substantial rights of the other parties were not prejudiced. (3) Where a petitioner’s preservation statement is inadequate under OAR 661-010-0030(4)(d), but it is possible to ascertain from the record citations in their reply brief where they allege the issues raised in the petition for review were preserved, LUBA will hold that the inadequacy of the preservation statement is a technical violation and that the substantial rights of the other parties were not prejudiced.

• Land Use

Gould v. Deschutes County

Under ORS 197.797(1), an issue is preserved for review by LUBA if it has been “raised and accompanied by statements or evidence sufficient to afford [LUBA] and the parties an adequate opportunity to respond to each issue.” A petition for review to LUBA must demonstrate that the issue “was preserved during the proceedings below,” OAR 661-010-0030(4)(d), and LUBA will not search the record or large page ranges to find whether an issue was preserved. H2D2 Properties, LLC v. Deschutes County, __ Or. LUBA __, (LUBA No. 2019-066, Dec. 2019) (slip op at 7-9). However, because the purpose of ORS 197.797(1) is to provide the parties and the decisionmaker “an adequate opportunity to respond to each issue,” LUBA will not deny an assignment of error due to an insufficient preservation statement a) if the reply brief provides more focused citations to where an issue was raised, b) “where it is evident from the challenged decision itself that the issues raised” were “central” to the proceedings below, and c) if “the local government’s decision responds to those issues.” Nehmzow v. Deschutes County, __ Or. LUBA __, __ (LUBA No. 2019-110, Aug. 10, 2020) (slip op at 14-15).

• Land Use

1st John 2:17, LLC v. City of Boardman

Where a local government awards a contract for a project identified in a comprehensive plan, the decision to do so generally does not constitute a “land use decision” because it does not “concern the application of a comprehensive plan.” Where a local government awards a contract dependent on another process, such as zoning permitting, the contract is not a “final decision” as required by ORS 197.015(10)(a).

• Land Use

Hurst et al. v. City of Rogue River

1) Where a local government chooses one of two procedural pathways to revoke a CUP, and the applicant makes no showing of a procedural error, that the applicant would have preferred the other pathway is immaterial; 2) Where a local ordinance places the burden of proof on the proponent of a CUP-related proposal, LUBA will hold that the burden of proof rests with the local government applying to revoke a CUP, and not with the party who initially applied for the CUP; 3) Where a local ordinance employs a requirement of proof of a “public need” served, LUBA will hold that it is a “highly subjective standard,” and will decline to apply the “clearly supports” standard from ORS 197.835(11)(B), which is only appropriate where approval standards are objective.