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To Apply Raise It or Waive It to Legislative Reviews or Not, That is the Question

By Edward J. Sullivan and Carrie A. Richter

The 2013 Oregon Legislature had before it a proposal to apply “raise it or waive it” to legislative matters, plan amendments, or land use ordinance revisions.  The legislature rejected this proposal but included a “note” in the budget for the Land Conservation and Development Commission (LCDC) to consider policy or legislation to deal with the issue.  Before your eyes glaze over dear reader, let us define these terms and explain why this issue is important.

“Raise it or waive it” is a requirement that applies to “quasi-judicial” land use hearings – those involving the application of policy to one or a few parcels of land, such as a zone change, conditional use permit or variance.  Quasi-judicial decision-making is where the applicant comes with a particular development proposal and the local government makes a decision, “yea” or “nay,” based on the adopted criteria.  Local governments provide mailed and published notice of the proposal: describing the property, identifying the applicable criteria, and detailed hearing rules for a decision that must be issued within 120 or 150 days.  That tradeoff promotes speed and efficiency in the land use process, if a party fails to raise an objection locally, she may not raise it for the first time on appeal.

In contrast, legislative amendments often affect large areas through changes to planning designations or changes to the text of those documents altering how various plan policies or regulations apply.  They often do not focus upon specific properties; but rather are policy matters that apply to the entire local government or to large parts of it.  The process of adoption is much more fluid.  If notice is provided, as in the case of Measure 56 notice containing boilerplate text that a proposal could affect permissible uses of your property, it is done in the most general terms and most often comes with tax bills.  Finally, that notice is often sent months or even years before the amendments are adopted and then, the proposal may look vastly different from what was originally proposed.  Participants in a legislative process must be fastidious and dedicated to track an often-changing scope of proceedings and a large record where consensus amongst the staff or the decision-makers is not always obvious.  Given that this is often a true sausage-making experience, state law does not require that participants raise all of their issues before the local government.  Rather, by merely making an appearance, they are free to raise new issues for the first time at LUBA.

Some local government planners working on the front line, putting their soul into drafting and shepherding a legislative proposal through the approval channels, favor imposing raise or waive it onto legislative decision-making.  From their perspective, cunning land use lawyers “wait in the weeds,” hold back their objections in order to kill a proposal on a legal front when they lack the necessary votes on the political front.  Whether this is a “fair” legal strategy or not, it is true that a challenge to LUBA pursued by a single or small interested group can significantly delay (or derail) a legislative proposal completely frustrating the significant taxpayer funds and efforts expended in the effort and the inertia keeping these significant planning efforts on track.

Applying “raise it or waive it” to these policy endeavors is problematical for a number of reasons.  First, there is no notice setting forth criteria and cautioning participants about the consequences of failure to raise issues and no limit on the time in which the decision must be made.  Although the statutes could be amended to provide for more detailed notice or decision-making time limits, the bigger problem is the nature of the decision itself.  Legislative decision-making is not a question of “to be or not to be.”  It is a question about where and how to be.  Unlike the situation for quasi-judicial hearings, the universe of criteria is so unlimited that providing a list of potentially applicable criteria would become a meaningless exercise.  Only those with the time to participate from the stakeholder advisory meetings through adoption by the council or commission, or the fiscal resources to hire attorneys to do the same would be able to track the local proposals over an unlimited period to identify potential issues.  Speaking as some of those attorneys accused of “laying in the weeds,” it is more often the case that we are retained at the end of the process when the extent of the impacts come into sharp focus but identifying all of the legal issues, sometimes when the final findings are available a week before adoption is difficult, even though it may be in our client’s best interest to do so.

Why is this important?  Oregon has a long tradition of citizen involvement.  The statewide planning goals were the result of intensive citizen involvement.  Oregon allows to anyone who participates in a hearing to appeal a case to LUBA act as his or her own lawyer.  If an industrial landowner fails to find out about hearings to enact new environmental regulations or if neighbors don’t find out about code amendments to allow inappropriate uses in residential zones, these folks may be foreclosed from challenging those regulations if they cannot contest them.  Whether you liked the Portland parking requirements for multifamily housing near certain transit facilities, the fact remains that these and other regulations fly “under the radar” at present and could be immune from review if the “raise it or waive it” rule applies to legislative decision-making.

This next year LCDC is likely to make recommendations to the legislature on the application of raise it or waive it to policy matters.  Whether citizen participation remains more important than the efficiency or cost-effectiveness of the Oregon planning program - that is the question.

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We regularly update clients about changes in real estate law and on industry trends. This includes briefing clients on legislative proposals in the federal tax, housing and other legal areas affecting their businesses. Staying current enables you to anticipate and prevent legal problems as well as capitalize on new developments.
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