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OREGON LAND USE BOARD OF APPEAL (LUBA)

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1 OREGON LAND USE BOARD OF APPEAL (LUBA)
Tod A. Bassham Board Member, LUBA

2 Overview I. Oregon Land Use Program Brief History Land Use Procedures
II. Land Use Board of Appeals How Review at LUBA Works III. Selected Discussion of Historic Preservation Cases and Rules Assume audience isnt overly familiar with Oregon’s land use program or LUBA’s role in it. So first provide overview Ask questions at any time.

3 A Brief History of Land Use Planning
8,000 B.L.U.P. (Before Land Use Planning) : Agriculture Introduced in Mesopotamia 7,999 B.L.U.P. First Land Use Conflict: Cain v. Abel 7,998 B.L.U.P. to 1920 A.D.: Various Wars over Land Use Conflicts 1916 A.D. New York Law Regulating Land Use Adopted, Upheld Incompatible uses, nuisance, litigation  zoning more efficient.

4 Early Oregon Land Use Program
1919 Cities Authorized to Plan and Zone. 1947 Counties Authorized to Plan and Zone. Many Oregon Cities and Some Counties Adopted Comprehensive Plans and Land Use Regulations. In Oregon, Comprehensive Plan > Land Use Regulations Only Portland and some larger cities really got into planning, most cities just basic zoning. Few counties even zoned. Unusual for planning to control zoning. More common planning is just aspirational. As a result, inconsistency with CP can be basis to overturn land use decision

5 Modern Oregon Land Use Program
1973 Senate Bill 100 adopted Required Cities and Counties to adopt Plans and Regulations Created Land Conservation and Development Commission (LCDC) Required LCDC to adopt Statewide Planning Goals Sen. Hector McPherson, farmer. Protect resource land, more efficient use of urban development. Gov Tom McCall “grasping wastrels of the land,” rampant condomania. Beach bill.

6 Overarching Theme Most Residential uses, Industry, Commerce, Public Services Located Inside Urban Growth Boundaries Resource Uses (Farm, Forest) Outside Urban Growth Boundaries Many, Many Exceptions, e.g. dozens of non-farm uses allowed in EFU zones Top-down model. Contrast with easement purchasing system. Lead to M37?. Property tax deferral

7 The New Landscape Statutes (ORS Chapter 197) Require Goals, Plans and Regulations Goals Implemented by Administrative Rules (OAR Chapter 660) Plans and Regulations Acknowledged to Comply with Goals and Rules Permits Comply with Acknowledged Plans and Regulations LCDC adopted most goals in mid-1970s. Took a number of years to ack CPs. Not finished until Once ack, permits comply with CP/LUR not goals and rules.

8 Statewide Planning Goals
Goal 1 (Citizen Involvement) Goal 2 (Land Use Planning) Goal 3 (To Preserve and Maintain Agricultural Lands, Mostly for Farm Use) Goal 4 (To Conserve Forest Lands, Mostly for Commercial Forestry) Goal 1: LGs must set up citizen involvement committees to input on legislation, allow effective involvement Goal 2: supported by AFB, be consistent with and based on ack CP/LUR Goal 3: Ag land definitions: Soil quality, other land suitable for farm use Certain farm and farm-related uses allowed outright. Certain compatible non-farm uses allowed with minimal approval required; other possibly incompatible uses allowed with conditions, if find no SI/SC. Land divisions restricted. 80-acre minimum farm parcel, 160-ac minimum grazing parcel. Non-farm divisions limited, NFDs allowed up to 2. Stability standard Goal 4: Suitable for commercial forestry and other lands that must remain in forest zoning to protect wildlife, access. Number of non-resource uses allowed, e.g. campgrounds, forest template dwellings

9 More Statewide Planning Goals
Goal 5 (To protect natural resources and conserve scenic and historic areas and open spaces). Goal 9 (Economic Development: to provide adequate opportunities for a variety of economic activities) Goal 10 (Housing: to provide for housing needs) Goal 5: protects special natural resources (rivers, lakes, e.g. Metolius headwaters), scenic, historic, open spaces. Aggregate is big. Rules protect against incompatible uses e.g. residential Goal 6: Air Water and Land Resources Quality. Mostly addressed by compliance with enviro regs. Goal 7: Areas subject to disasters and hazards. Landslides, etc. Mostly addressed by other legislation Goal 8: Recreational needs. Plan for parks, authorizes destination resorts. Goal 9: LGs must adopt, update economic opportunities analysis, and provide enough land for a variety of economic uses (but need not provide for all). Goal 10: provide 20 year supply of land for housing needs. Can’t discriminate against certain types of housing. Difficulty is who pays for infrastructure?

10 Still More Statewide Planning Goals
Goal 11 (Public Facilities and Services appropriate for rural and urban lands) Goal 14 (Urbanization: restrict urban development to urban lands, require urban growth boundaries based on population and demonstrated need) Goals (Willamette River, Coastal Protection) Goal 11: limits establishment or extension of public facilities, water, sewer outside UGB, with exceptions for health emergencies. Goal 14: limits urban use of rural land. Establish, amend UGBs based on population and need. Population forecasts voodoo but become critical. Generally use PSU forecasts but can adopt own, county balances city forecasts. Need must show not enough capacity wi UGB over planning period, encouraged/required to factor infill and minimum densities in larger cities. Location: avoid prime farmlands, higher priority for RR land non-resource land. Urban reserves. Once within UGB, then urbanizable but not urbanized until zoned, planned and facilities considered. Goal 15: WR Greenway limit new development, protect existing, require WG permits Goal 16, 17, 18: estuaries, beaches, coastal shorelands, Goal 19: ocean resources. Mostly process, few actual limitations but do require LGs to evaluate, plan, consider impacts

11 Goal Exceptions Local governments can adopt case-by case “exceptions” to goal requirements if: 1. Land physically developed, or 2. Land is irrevocably committed to non-goal uses by surrounding uses, or 3. Reasons justify why goal should not apply and areas not requiring exception cannot accommodate use To comply with Goals 3 and 4, many LGs adopted wholesale resource zoning, did not closely evaluate soils, etc. to see if actually ag or forest land. To refine on case by case basis, landowner can demonstrate that land is not actually ag or forest under definitions. In addition, general process to adopt exceptions to goal requirements. Three types. Most used for Goal 3 and 4, but can be used for many substantive goals. Criteria are difficult to satisfy, though. Exceptions must be “exceptional.”

12 Acknowledgment Department of Land Conservation and Development (DLCD) administers the Land Use Program, under LCDC. By 1986, DLCD and LCDC completed acknowledging comprehensive plans and LURs for 36 counties and 240 cities.

13 Post-Acknowledgment After acknowledgment, changes to plans and LURs are processed as post-acknowledgment plan amendments (PAPAs). Review by LUBA. Periodically (~ 20 yrs), DLCD/LCDC review plans and LURs for compliance with goals, rules and statutes: Periodic Review Post-ack, permits and other LUDs based on ack plan and code. Constrained scope to interpret plan and code based on statute/goal/rule. PR slow process. May take 5 yrs or more. Small cities exempt. PR has been suspended, and may be de-emphasized, which means more PAPAs.

14 The Great Compromise Problem: Increased Regulation + Citizen Involvement = Slow Development Review and Approval Process and Slow Appeals, which threaten economic development. Answer: Speed Up Local Land Use Decision-Making and Appellate Review 1000F lots of new citizen involvement, new regs. Financing of big development projects time sensitive, delay can mean financing lost. Justice delayed is justice denied.

15 120-Day/150 Day Rule 120 days to issue decision on permit or zone change for property within UGB 150 days to issue decision for property outside UGB Enforcement: Mandamus remedy, Refunds, Attorney fees If go past 120 days, then applicant can seek writ of review in CC, LG loses jurisdiction, CC must order approval unless LG demonstrates not allowed under LURs/CP. Refunds, attorney fees. Gamesmanship penalized: LG cannot deny simply because running out of time. Provision to appeal to LUBA and obtain order to approve, plus attorney fees. Difficult remedy.

16 Quasi-Judicial Hearings
ORS provides minimum procedures for Q-J hearings on zone changes, permits, etc. Notice, Staff Report, Evidence, Rebuttal Raise It or Waive It Other limits on scope of review: law of the case, affirmative waiver

17 Permit Decisions w/o Hearing
ORS (counties) and (cities) allow permit decision w/o hearing if 1. Notice of decision provided to neighbors 2. Opportunity to appeal decision to a de novo hearing. Consolidated procedure for permit and zone change apps required. LGs must hold a hearing, but can use permit without hearing procedure. Limited appeal fees for de novo hearing $250.

18 Limited Land Use Decisions
Quicker Procedures for some permits: 1. Within a UGB, concerning 2. Approval or denial of a tentative subdivision or partition plan, or 3. Site review, design review and similar discretionary permits regarding physical characteristics of use permitted outright. Like permits w/o hearing. Admin decision, notice to neighbors, opp for local appeal. Note only apply wi UGB. Outside treated as a “permit.” That is general overview of the land use program. Questions before moving on to LUBA?

19 Appellate Review Before LUBA
Pre-1979, local government land use decisions appealed to circuit court by writ of review. Slow. Circuit Court decision can be appealed to Court of Appeals. Slower. Court of Appeals decision can be appealed to Supreme Court. Slowest. CC constitutional obligation to offer speedy trials in crim cases, civil cases go to the end of the line months depending on jurisdiction.

20 Enter LUBA 1979, Legislature creates LUBA on temporary basis, subordinate jurisdiction with LCDC re Goals. 1983, LUBA made permanent state agency with exclusive jurisdiction over appeals of “land use decisions.” 3 Board members (referees), 2 admin staff. Smallest state agency. Appointed by gov, confirmed by senate.

21 Why LUBA? Panel of land use experts > solo circuit court judge unfamiliar with land use Consistent application of statewide law Authoritative decisions published to guide land use decision-makers Reduce # of appeals to Court of Appeals Expedited review Few other states have central review body. Wash, three regional appellate panels, but problems. In addition to publications, LUBA has most opinions and orders on its website since Further, topical headnote index allows research without buying license.

22 Time Is Of the Essence ORS et seq. 21 days to file an appeal with LUBA. 77 days for LUBA to issue its opinion after the local record is filed and settled. ORS days after oral argument for the Court of Appeals to issue its decision on appeal from LUBA. time is of the essence in reaching finality in LUDs (3) 21 day deadline tolled if no hearing held, bad notice. For PAPA’s 21 day clock starts ticking when notice provided, other decisions when final.

23 LUBA Review Deadlines 21-day deadline to file objections to record
21 days after record settled to file Petition for Review (PFR) 21 days after PFR to file Response Brief Oral Argument Issue Final Opinion within 77 days after record settled

24 Elements of LUBA Review
Cost to file appeal: $200 fee plus $200 deposit for costs – Cheap! $100 fee to intervene Persons can represent themselves LUBA’s review of evidence confined to local record Typical Review Time: 4 to 6 months About 20 percent represent themselves. LU is complex, but many do a good job. Can’t represent others. Lead petitioner/intervenor Process for LUBA to accept new evidence on very limited grounds: disputed factual allegations concerning unconstitutionality of decision, standing, ex parte contacts, and other procedural irregularities not shown in the record and that if proved would warrant RR

25 LUBA’s Limited Scope of Review
Only Issues Raised Below PAPAs not in compliance with Goals LURs not in compliance with Plan Procedural Error Not Supported by Substantial Evidence Misconstruction of Law Unconstitutional Inadequate Findings Policy disagreements not basis for RR

26 Deference to Local Plan/Code Interpretations
ORS (1) LUBA shall affirm a local government’s interpretation of a local plan/code provision unless the interpretation is inconsistent with the express language, purpose or underlying policy, or inconsistent with statute/rule/goal the provision implements.

27 Deference on Evidentiary Calls
LUBA cannot reweigh the evidence or make its own evidentiary judgment, but must affirm the local government’s evidentiary call unless LUBA concludes, based on the whole record, that no reasonable person could reach the conclusion the local government decision maker did. Battle of the experts: generally, LG can choose which expert to believe

28 LUBA Jurisdiction I “Land Use Decision”: Final decision of a local government concerning the adoption, amendment or application of the Goals, a comprehensive plan provision, or land use regulation Includes final decision by a state agency to which the agency is required to apply the Goals Exclusive jurisdiction over LUDs, but jurisdiction limited. Challenges can be raised at any point, but generally raised early on in the appeal.

29 LUBA Jurisdiction II Exceptions to “Land Use Decision”
Decisions made under LURs that do not require interpretation or exercise of policy or legal judgment Building permit issued under clear and objective LURs. Tirumali facts: building permit for house on slope. Height 30 feet from the “base point,” the lowest “grade” on the slope. Code defined “grade” to mean “finished surface.” City allowed developer to add fill to raise the lowest grade, and measure from top of fill, making house higher and blocking neighbors view. Finished surface mean top of fill, or only a developed surface such as a sidewalk? Because “finished surface” and “grade” ambiguous, the decision did not fall into either exception, so LUD. But LUD does not necessarily mean requires hearing and other procedures under ORS , or is a permit for purposes of , and Because LUD LUBA can review it, but does not necessarily mean that decision requires a hearing and other procedural steps. Only required if also a “permit,” discretionary approval of development of land.

30 LUBA Jurisdiction III Other Exceptions:
Transportation Improvements authorized under Comprehensive Plan Decision on Final Subdivision or Partition Plat State Agency Land Use Compatibility Statements E.g. Applicant applies for DEQ permit for septic for use, DEQ will submit LUCS to LG to confirm that proposed use is consistent with plan/code, and if DEQ will issue its permit based on the response. The DEQ decision is not LUD, but the LG determination whether or not the use is consistent with plan/code can be a LUD. Recent statutory changes (H) LG determination that state agency action is compatible with plan/zone is not LUD, if (1) LG has already made a LUD decision approving action, (2) the action is allowed without review, or (3) the action requires future LU review.

31 LUBA Jurisdiction IV LUBA also has exclusive jurisdiction over “Limited Land Use” Decisions, which involve decisions within a UGB concerning: Tentative Subdivision or Partition Plat Site and Design Review decisions regulating characteristics of use permitted outright LLUDs usually admin decision without hearing, notice of decision to neighbors, then opportunity to appeal to hearings officer. LUBA’s scope of review slightly different.

32 LUBA Jurisdiction V Exhaustion of Local Remedies
Standing of the Petitioners Appearance, Participation Adversely Affected Timely Appeal Petition for Review filed on Time If local appeal available, must file it cannot appeal directly from intermediate decision to LUBA. Must also identify specific issues for local appeal, and if fail to do so, unidentified issues cannot be raised to LUBA. Standing: must appear or participate in the proceedings below, by writing or oral testimony. Generally don’t have to show that you are adversely affected by the decision but some local codes have similar requirements. Appeal to LUBA must be filed within 21 days of date decision became final, not when notice sent. Final when written document signed by decision maker, unless code specifies that the decision becomes final at a later date. Effective does not mean final. Consistent with time is of the essence, LUBA will dismiss an appeal if the PFR is not filed within 21 days from date record settled, and forfeit filing fee to LG. If filed by mail, filing date is date of first class post mark. Non-postal service delivery provides (fed-ex, UPS, postal annex) don’t count.

33 A Land Use Bestiary Legislative comprehensive plan and LUR amendments, e.g. adopt new regulations Quasi-Judicial plan and LUR amendments, e.g. zone change Conditional use permits Site design, historic review, other discretionary permits Land divisions, PLAs Legislative usually large scale, not directed at a few properties or stemming from a specific application. QJ usually stems from application of property owner, directed at few properties. CUP discretionary approval of development of land. LG can approve or deny under discretionary criteria, impose conditions necessary to ensure compliance. Outright permitted uses, still some discretion in whether and how to approve physical characteristics, size, setbacks, etc., but not discretion to approve or deny the use per se. Tentative subdivision and partition plats, some PLAs.

34 More Beasts of the Jungle
Variances, adjustments Nonconforming Use determination and expansion/alteration Vested Rights Annexations UGB amendments Use Category Variance: sometimes developer can’t meet criteria for no fault of own, so many codes allowed to vary criteria in certain circumstances. NCU: zoning regs, permitted uses change frequently. If use lawfully established before zoning change, then can continue, but need approval to expand or alter NCU, allowed only if don’t increase impacts on adjoining uses. VR: use partially established, can complete if vested enough money and effort Annexations to expand city boundaries UGB amendments If unsure what category use belongs to, can ask for a use determination, binding on applicant and LG. E.g. Sarti, dance studio is an “institutional use” defined as educational cultural religious or social welfare facility. What if different zone explicitly allows a dance studio? Inference that dance studio doesn’t fit in other use categories?

35 LUBA Procedure : The Appeal
Notice of Intent to Appeal (NITA): 1. Filed within 21 days of the date the challenged decision became final (some exceptions). 2. Deemed filed on date of mailing if mailed certified or registered, otherwise on receipt. 3. Served on all parties entitled to notice of the decision (3): If decision made without a hearing or without following procedures for permit decision without a hearing, or if notice of hearing does not reasonably describe the use actually approved, deadline is tolled until 21 days after actual notice of decision if notice is required, or when P knew or should have know of the decision if no notice of decision required. First class mail won’t do: filed when received. Service is critical notice to other interested persons. LUBA can dismiss appeal if bad service not cured. Must be accompanied by filing fee and deposit for costs, but LUBA typically gives 7 days to cure.

36 LUBA Procedure: The Early Rounds
Within 21 days of filing NITA: 1. Local government must file the local record with LUBA and petitioner 2. Motions to intervene must be filed (tolled if not served with NITA) 3. Sometimes motions to dismiss filed

37 LUBA Procedure: I object!
Objections to the Record: 1. Must be filed within 14 days of date record received at LUBA. 2. Can object that record is (a) missing something placed before the decision-maker, (b) includes something not placed before decision maker. When R received, 21 day clock starts for filing PFR. But if RO filed, then clock stops and must be restarted. So, sometimes RO are filed less because there is really a problem with the record, but to allow more time to write the PFR.

38 LUBA Procedure: Briefing
Petition for Review (PFR): Must be filed 21 days from date record received or settled Appeal dismissed if PFR untimely filed PFR must establish jurisdiction, set out assignments of error providing a basis for reversal or remand under LUBA’s standards of review

39 LUBA Procedures: Responses
Response Brief (RB) filed within 21 days of date PFR is filed Reply brief filed within 7 days of RB, limited to 5 pages and only “new matters” raised in RB Oral Argument held days after RB filed OA is informal chance for parties submitting briefs to elaborate on their arguments, not a hearing at which general public can speak. Can’t make new AOEs.

40 LUBA Procedure: the Decision
LUBA (usually) issues its decision within 77 days from date record settled Dispositions: 1. Affirm the Decision 2. Remand the Decision for Repairs 3. Reverse the Decision 4. Dismiss appeal LUBA routinely asks the parties to stipulate to give LUBA an additional 7 days if necessary, to avoid having to call the parties to ask permission. Better to issue opinion a few days past 77 days than incomplete or legally flawed opinion. Affirm if none of the AOEs provide a basis for RR Remand if decision is flawed but fixable: additional findings, evidence, procedure Reverse if LG can’t do what it did: proposal violates law Dismiss if lack jurisdiction

41 What if LUBA gets it wrong?
No procedure for reconsideration Appeal to Court of Appeals within 21 days Expedited review before COA. Supreme Court review possible but rarely granted 10-15 percent of LUBA decisions appealed to COA.

42 Land Use Planning and Historic Preservation
Planning and Historic Preservation intersect in Goal 5, which requires LGs to “conserve” historic resources. Goal 5 requires LGs to inventory “cultural areas” and encourages, but does not require, inventories of historic resources. Guidelines suggest that state and federal registries and recommendations should be used to designate historic sites.

43 Old Goal 5 Rule The old Goal 5 rule, at OAR , required LGs to inventory significant G5 resources, identify conflicting uses, and develop program to achieve the Goal. Many if not all LGs adopted cultural and HR inventories Superseded by OAR except for cultural resources.

44 New Goal 5 Rule The new Goal 5 Rule, OAR , sets out a “standard” process for inventorying and deciding whether and how to protect significant Goal 5 resources. OAR is the specific rule for historic resources, and partly supersedes the standard process. OAR determines when Goal 5 applies to plan or code amendments.

45 OAR LGs not required to provide new or amended HR inventories or programs. If LG chooses, develop new inventory and program under the standard process, but need not use the ESEE process to develop program. Must provide broad notice of process. Must adopt list of significant HR sites. Presumed that inventories were developed under old Goal 5 rule. Collins v. LCDC, 75 Or App 517 (1985) (Jacksonville erred in failing to identify conflicts, conduct ESEE analysis and develop program, instead relying on historical review commission to do all that on a case-by-case basis).

46 OAR con’t Must protect HR of statewide significance even if not designated in the local plan. Must allow land owners to refuse designation and remove designation if “imposed” by the LG. Cannot approve demolition or modification of removed HR for at least 120 days.

47 HR Protection Programs
“Protect” means to require LG review of applications for demolition, removal or major exterior alteration of a significant HR. LGs can protect more than required by Goal 5. Commonly, programs require design review for modifications or new construction in HR district.

48 Designation Issues Must the LG designate? Yes. DLCD v. Yamhill Co., /42, 17 Or L 1273 (1989) Unclear designations. Carlton Dev. LLC v. Portland, , 62 Or L 157 (2010); Paulson v. Wa Co, Removal of designation. Demlo v. Hillsboro, , 39 Or L 207 (2001)

49 Program Issues Ambiguous Text. Burgess v. Corvallis, , 55 OL 482 (2008); Save Amazon v. Eugene, , 29 OrL 335 (1995). Amendments to Program. Cox v. Polk Co , 49 OrL 78 (2005); NWDA v. Portland, , 50 OrL 310 (2005).

50 Archeological Resources
Aggregate mining and archeological sites. Walker v. Deschutes Co., 55 Or L 93 (2007) (no obligation to find new sites, but must protect designated sites against impacts of mining). Murry v. State of Oregon, 203 Or App 377 (2005) (Gorge Commission requirement for cultural survey prior to development does not constitute takings).

51 How to Avoid LUBA Write clear, objective, unambiguous comprehensive inventories and DR regs. Follow all required procedures. Write adequate findings (criteria, facts, explanation) Make well-reasoned interpretations, following PGE format.

52 Final Thoughts Most of the HR land use action is local, developing HR inventory and regs, and making permit decisions. LUBA has limited role, given rarity of appeals and limited scope of review. HR permit decisions are subject to discretionary permits procedures (hearings, adequate findings, etc.)


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