Land Use Board of Appeals (14 summaries)
Red Grapes, LLC et al v. Clackamas County
Where a building is to be 鈥渃onstructed resembling a house,鈥 but to 鈥渇unction as a clinic,鈥 LUBA will find that the building is not an accessory building normally associated with the primary uses in a zone which allows only one single-family dwelling, duplex, or manufactured dwelling per lot unless an accessory dwelling unit or temporary permit is received. Where a local ordinance limits accessory buildings or uses to those 鈥渢he function of which is clearly incidental to that of the main building or use on the same lot,鈥 LUBA will construe 鈥渟ubordinate鈥 and 鈥渃learly incidental鈥 to require more than a tangential relationship to the dwelling.
Area(s) of Law:- Land Use
Marick v. City of Lake Oswego
Where a city approves a Residential Infill Design (RID) and a building official later determines that a portion of the nonconforming home built prior to the current zoning requirements is unsafe and requires reconstruction, LUBA will hold that the project, even if amounting a completely new structure, still satisfies the requirements of a local ordinance which permits 鈥渞econstruction of a damaged nonconforming structure and exempts that reconstruction from contrary . . . provisions to the extent that the damaged portions of the structure failed to conform.鈥 Accordingly, LUBA will hold that the project does not require a new or modified RID application.
Area(s) of Law:- Land Use
Zimmerlee v. Crook County
Where a party seeking to appeal a county land use decision files a NITA two days late and makes no showing of prejudice, LUBA will strictly construe ORS 197.830(9) and dismiss the appeal.
Area(s) of Law:- Land Use
1st John 2:17, LLC v. City of Boardman
Where the record shows that a party has been granted advance occupancy of an easement, it is not inconsistent with the express language of a local ordinance applying to 鈥渞ecord owner[s] of property (person(s) whose name is on the most recently recorded deed)鈥 to classify that party as 鈥渁 record owner." Even when a private utility company is providing a service to the general public it is not inconsistent with a local ordinance applying to 鈥淸p]rivate utilities (e.g. natural gas, electricity, telephone, cable, and similar facilities)鈥 to classify the company as a 鈥減rivate utility.鈥
Area(s) of Law:- 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 鈥渓and use decision鈥 because it does not 鈥渃oncern the application of a comprehensive plan.鈥 Where a local government awards a contract dependent on another process, such as zoning permitting, the contract is not a 鈥渇inal decision鈥 as required by ORS 197.015(10)(a).
Area(s) of Law:- Land Use
East 快活视频, LLC v. City of Salem
1. Local criteria utilizing subjective and value-laden judgments do not satisfy the requirement of clear and objective procedures under ORS 197.307(4). 2. Even if an alternative approval process is available under ORS 197.307(6), it may not be utilized in a local government decision unless the applicant has an option to pursue their application under ORS 197.307(4) with clear and objective criteria.
Area(s) of Law:- Land Use
Landwatch Lane Cnty. v. Lane Cnty.
ORS 215.780 鈥渁uthorizes [a] county to allow the partition of a property to create a five acre parcel to house a qualified dwelling and that both of the resulting parcels may be less than 80 acres, so long as the parcel without the dwelling is constrained in its ability to house a dwelling in the future.鈥 Russell v. Lane County, _ Or LUBA _ (LUBA No 2020-072, Jan 8, 12 2021).
Area(s) of Law:- Land Use
Sherman v. Deschutes County
Under DCC 215.283(1), placement of a necessary public utility in the public right-of-way constitutes a reconstruction or modification of public roads and highways. DCC 18.84.050(A) does not require a new structure exempt from needing a building permit to obtain site plan approval in accordance with DCC 18.84 prior to construction.
Area(s) of Law:- Land Use
Anunziata Gould v. Deschutes County
鈥淸T]he plain meaning of [DCC 18.16.040(A)(3)] requires that the proposed conditional use be located on the single site on the subject property that is least suitable.鈥 Oregon Landwatch v. Deschutes County, 78 Or LUBA 136, 147 (2018). An option to apply for an incidental take permit does not substitute determining compatibility with surrounding properties under DCC 18.128.015(B).
Area(s) of Law:- Land Use
1000 Friends of Oregon et al v. Josephine Cnty.
1) Where a plan amendment is proposed, OAR 660-006-0010 requires hierarchal analysis of specified data sources before proceeding to alternative means of determining forest land productivity. 2) OAR 660-004-0040 does not apply to nonresource land; findings as to a Goal 14 exception must 鈥渋dentify the relevant criteria, the evidence relied upon, and why the evidence supports the conclusion that the criteria are or are not met,鈥 Heiller v. Josephine County, 23 Or LUBA 551 (1992); and if a plan amendment could result in residential densities inconsistent with Goal 14 an exception must be taken, Wood v. Crook County, 49 Or LUBA 682 (2005).
Area(s) of Law:- Land Use
Conte v. City of Eugene
(1-1) On remand from LUBA and the Oregon Court of Appeals, a local government may change their approach to amending local land use regulations without necessitating adoption of specific findings as to their reason for changing course as long as 鈥渞equired considerations were indeed considered.鈥 (1-2) When determining residential density under EC 9.3626(1)(g) 鈥渋t is permissible to count a detached single-family dwelling and its accessory dwelling as one dwelling鈥 because EC 9.3626(1)(a) to (c) already interprets the word 鈥渄welling鈥 flexibly when pertaining to density ranges in the Eugene-Springfield Metropolitan Area General Plan. (2) The 鈥減revent [ion of] the erosion of the neighborhood鈥檚 residential character鈥 in the Westside Neighborhood Plan Land Use Element Policy 1 refers only to those changes 鈥渞ezoning or redesignating residentially zoned properties therein.鈥 (3) 鈥淐omplicated does not equate to ambiguous鈥 when considering if local governments 鈥渁dopt and apply only clear and objective standards, conditions, and procedures regulating the development of housing鈥 as required by ORS 197.307(4).
Area(s) of Law:- Land Use
OR Dep't of Fish and Wildlife v. Crook County
A plan with unknown off-site locations for conservation efforts which are not owned in fee is not a reliable 鈥渘o net loss鈥 mitigation policy under OAR 635-415-0025.
Area(s) of Law:- Land Use
ATR Services et al v. Lane County
In interpreting LCC 13.150(1) consistently with ORS 192.176, 鈥渃reated by sale鈥 does not include a unit of land reconfigured through a property line adjustment.
Area(s) of Law:- Land Use
Maher v. Multnomah County
Where a petitioner fails to raise an issue in an initial evidentiary proceeding, the issue may not be raised for the first time before LUBA. ORS 197.797(1); ORS 197.835(3).
Area(s) of Law:- Land Use