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carrie_richterLast week in the case Lake Oswego Preservation Society v. City of Lake Oswego, LUBA gave a huge boost to the historic preservation community and the protection of local historic resources.  ORS 197.772 is one of the few statutes regulating how local governments designate and protect historic resources.  ORS 197.772(1) provides that where a property owner objects to any form of historic property designation, the local government must remove the designation.  Subsection (3) of the same statute requires that the local government “allow a property owner” to remove a historic designation that was previously “imposed by the local government.”  LUBA was asked to decide whether the term “property owner” is limited to the owner at the time that the designation was imposed or whether a person who becomes an owner after the designation was imposed, where the original owner objected to the designation, could also seek removal.

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  The City’s decision was withdrawn for reconsideration and as a result, the Carmen House was designated without the additional acreage and without further objection.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 owners of property after it is designated and the City erred in removing the designation based on ORS 197.772(3).

LUBA’s decision went on to find that a property owner’s failure to continually raise the objection through later stages of a proceeding does not mean that the owner withdrew the objection or implicitly consented to the designation.  LUBA found that although Wilmot did not object to the subsequent designation of just the Carman House, Wilmot did not withdraw his previous objections.

LUBA’s decision makes sense from a policy perspective.  Once a historic inventory designation is in place, subsequent buyers, who are presumably aware of the designation, should be assumed to have bought the designation along with all of the obligations that come with it.  Removal of the designation is still possible through Goal 5 and its implementing rules, but not through an end-run, relying on the limited objection of a previous owner who subsequently elected not to pursue such a course.  After all, the value of a historic resource and its overall contribution to a community does not lessen when contemporary development pressures create incentives to develop that may have not existed when a resource is designated.

In a land use scheme that many argue is overly complicated and convoluted, it is interesting to note that historic preservation has very little, arguably a single relatively clear statutory standard, governing the protection has resulted in this case that will have a demonstrable impact on preservation efforts throughout the state.  The first of these cases, Demlow v. City of Hillsboro, LUBA narrowed the removal exception to those cases where the historic designation was “imposed on the property”.  Now, LUBA has narrowed the exception further to the current owners that object.  This is a narrow exception indeed.  Now we will wait to see if the Court of Appeals is asked to review or if the legislature decides to enlarge or alter the standard.

Note:  This firm represents the City of Lake Oswego in some limited matters unrelated to this case.

Wireless TowerMount Ulla Historical Preservation Society, Inc. v. Rowan County, 2014 WL 619584 (NC. App.) involved the second attempt of a broadcast company secure a conditional use permit to build a radio tower.  The first application had been denied in 2005 on grounds of an air safety hazard to a nearby airport.  That denial had been appealed to the North Carolina Court of Appeals but was upheld.  In 2010, a slightly lower tower was proposed and approved after the governing body denied a motion to dismiss the application on res judicata and collateral estoppel grounds.  The trial court reversed and the Historical Society appealed.

The Court characterized conditional use permit conditions as quasi-judicial and asserted that the trial court decision on this question of law was subject to de novo review.  Utilizing North Carolina case law, the Court found that res judicata and collateral estoppels could apply to parties in privity if the facts have not materially changed as to the grounds of the previous denial.  In this case, the 2005 denial was due to an air safety hazard and the question was whether a reduction of height by 150-feet of the tower, which was now proposed to 1,200 feet high, was a material change.  The Court characterized this as a fact question to which the Court normally deferred to the governing body.  However, the Court, in viewing the whole record, found there was nothing that would materially undermine the reasoning of the 2005 decision.  The Court said the Respondent essentially had the same facts in both cases and failed to show that the 2005 decision was incorrectly decided based on new facts.  Lacking such a basis, the doctrines of res judicata and collateral estoppel applied and the grant of the conditional use permit was found to be correctly reversed by the Trial Court.

Oregon courts in LUBA have been reluctant to apply res judicata and collateral estoppel to quasi-judicial land use decisions.  Plans and regulations, as well as facts, change over time and the identity of parties in two cases is rarely the same.  However, this North Carolina decision, which turns on whether facts have been materially changed, is an interesting excursion into this area of law. Mount Ulla Historical Preservation Society, Inc. v. Rowan County, 2014 WL 619584 (NC. App.)

The train of events from the release of the Oregon Court of Appeals decision in the Metro urban and rural reserves case to the resolution of that case in the Oregon legislature has been an interesting one to follow. The Court of Appeals remanded a decision that followed four years of public hearings and actions to establish urban and rural reserves in the Portland area. Following various stages of shock, denial and anger, the development community, Metro and Portland area local governments changed their positions from one that this was strictly a regional problem with which the legislature should not enter, to one in which such entry was invited.

In enacting the resolution of this case in the so-called “Grand Bargain,” the legislature imposed a solution in one particularly contested part of the region – Washington County – rather than to have the reserves decision reconsidered as the court had commanded. Other deficiencies in Multnomah and Clackamas Counties were left for the Land Conservation and Development (LCDC), those counties and the region to sort out. Within days, the legislature expanded the Urban Growth Boundary (UGB), as well as the urban and rural reserves in Washington County and declared victory to the applause of much of the development and business community and local governments.

Expanding the UGB is important, as urban type development is allowed only within that boundary and significantly affects the price of real estate. Similarly, placing land in an urban reserve presumptively puts that land first in line for addition to the existing UGB for urban development over a 50-year period. And placing land in a rural reserve makes it likely that such land will not urbanize over the next 50 years.

The legislature, local and regional governments, and public interest groups characterized these actions as nothing more than a mediated settlement with the parties to the lawsuit resulting in an outcome that was consistent with initial predictions. This does not change the fact that it was the legislators, rather than local governments, drawing colored lines on a map. Often these supplicants and the legislative leaders will assert that the UGB and reserves processes are just too complex and need to be simplified. Yet these parties might consider their own roles in shaping these processes. Instead of providing a checklist of objective requirements for expanding the UGB, the legislature left in place a system of unquantified “factors” to apply so as to give decision-makers the “flexibility” to reach whatever decision they wished. The legislature and LCDC used a similar system of applying “factors” to the reserves process for the same reason.

In addition, instead of allowing the Land Use Board of Appeals (LUBA) to review these decisions, the legislature specifically directed that review to LCDC, a government-friendly forum that did not work as hard to consider those pesky legal questions that occur in making land use decisions. Both left it to the Court of Appeals to weigh the reserves decision against the criteria and were duly shocked and appalled with the result. It is far easier to blame the process and other participants than to fess up to admitting to the source of the complexities in that process.

In reality, there was an attempt to game the process (through an assertion of “flexibility” which was designed to place a patina of respectability on the result) to justify putting certain lands over other lands into urban reserves than was justified, regardless of what the law said, because some of the participants wanted that result.

However the real problem created by the “Grand Bargain” is the precedent it sets. While both the UGB and reserves processes are difficult (and are supposed to be difficult as the decisions are significant and long-lasting), on what basis can the legislature turn down similar requests for imposition of a legislative solution in Woodburn, Bend or McMinnville which have similarly complex decisions? Will the watchdogs and the environmental community continue to be coy about the application of raw political power to make local planning decisions on the ground?

The quickest and easiest decision is not always the best one. The legislature may yet rue the day it stepped in to impose its will in the reserves case. It will be difficult to deny the second supplicant, much less the third, fourth and others.

Although not identified within LUBA’s statutorily-prescribed scope of review, all decisions approving proposed development against particular criteria must include adequate findings.  As established in cases such as Fasano v. Board of County Commissioners this requirement includes (1) identification of the relevant approval standards, (2) identification of the facts relied upon, and (3) an explanation of how the facts led to the decision.  Such obligations may appear easy enough on their face but have worked to snag many decisions that otherwise would have likely been affirmed.   The effect of this extra layer of review, followed by a remand not only results in delayed development, but increases the cost to local governments defending the decision and, it must be assumed, additional development costs then passed on by developers to homeowners and businesses.  Two recent LUBA opinions illustrate the problem.

In L’Heurex v. City of Portland, a neighbor challenged an adjustment committee approval of a height adjustment to allow construction of a dwelling that will be 30-feet tall instead of the required 23-footheight.  The findings responding to the five adjustment criteria were jumbled together, making it difficult for LUBA to determine which findings responded to which criteria.  One of the adjustment criteria asks whether granting an adjustment will “equally or better meet the purpose of the regulation to be modified.”  Here, the purpose of the height limitation is to “promote a reasonable building scale and relationship of one residence to another.”  The findings failed to define the term “scale” or “building scale;” a failure in identifying and interpreting the applicable standard, step one in the process outlined above.  This left LUBA to interpret the purpose on its own, concluding that “scale” means the “size, bulk or mass of a building.”

Moving to what the City did find, the decision explains that the “additional deep front yard setbacks places the home within a reasonable relationship to other residences” and as a result, when viewed by a pedestrian, the new home would be generally the same height as the adjacent homes.  The findings go on to note that the house will “not significantly impinge on views, light and open air among all houses.”   LUBA found that the shared dwelling setbacks, the views, light and open air had nothing to do with the purpose served by the regulations which is to reduce the scale or mass of a building.  LUBA went on to clarify that the reasonable building scale language is to be evaluated against neighboring residential homes, rather than for pedestrians when viewed from the street.

Finally, there was no discussion of whether the adjacent homes satisfied the existing height limitations as setting the baseline for the appropriate height.  In a footnote, LUBA speculated that they do not.  LUBA went on to opine that “it is hard for us to see how the city could ever grant a height adjustment to allow a house that is seven feet taller than the 23-foot standard, unless there are unusual on-site or neighborhood circumstances.”  Again, giving LUBA an opening to prognosticate about the application of a relatively frequently used adjustment criteria should make future applicants’ (as well as the city) nervous because such warnings often serve as homing signals encouraging likely opponents.  This is just another unanticipated consequence of failing to take time and care with findings.

One more interesting tidbit about this case, the applicant developer did not participate in the LUBA appeal defending its approval.  Rather, the city attorney’s office expended that effort.  Certainly the city could have chosen not to participate but it did in this case.  We can only assume that those legal costs will be covered by some future increase in development application fees.  In any event, the matter was remanded for the City to adopt adequate findings explaining the decision, thereby delaying development which may otherwise have been acceptable, considering that this was a single infill home.  In contrast, consider another recent case, Shamrock Homes LLC v. City of Springfield, where an amendment affecting a 267-acre area was appealed.

In Shamrock Homes, the City of Springfield adopted a series of ordinances amending a refinement plan that replaced the existing zoning designations with new mixed-use plan designations and zones intended to revitalize the Willamette River waterfront.  Petitioner, who owned a manufactured dwelling park on land that was previously zoned low density residential and was rezoned to Employment Mixed-Use, which does not allow manufactured dwelling parks, assigned error under a number of Statewide Planning Goals.  With regard to challenges regarding Goal 15, the Willamette River Greenway goal, LUBA found that identifying a 75-foot setback from the Willamette River may be consistent with other laws, but that such a finding fails to explain how the setback is established to “protect, maintain, preserve and enhance” the Willamette River as it is identified for protection in the city’s adopted inventories.  For this as well as many other reasons related to findings, LUBA remanded the decision extending what was a four-year planning effort to at least another year of delay.

The thing about adequate findings is that, although time consuming and often mind-numbing to draft, they are the low hanging fruit of errors in land use decision making that would be easy to correct.  The additional delay and cost associated with LUBA remands based on inadequate findings serves as fodder for Oregon land use system opponents who work to paint the process as too cumbersome, complicated, time-consuming, and anti-development.  The burden ultimately is on land use planners, local government attorneys, and decision-makers to demand better from their staff to take the time to avoid making these elementary errors.

A recently decided case by the Oregon Land Use Board of Appeals (“LUBA”) says a lot about our land use system – perhaps too much. Richmond Neighbors for Responsible Growth v. City of Portland (February 20, 2013) started out as a challenge to project design and the parking requirements (or lack of such requirements) for a multi-family project at SE 37th and Division which was zoned for the multi-family use. Some neighbors formed Richmond Neighbors for Responsible Growth (RNRG) to object to the project. RNRG wanted input into the design of the site and structure to assure the “livability” and “character” of the area. Some neighbors also wanted fewer apartments. The City treated the application as one in which it had no discretion but to grant the application for 81 units. This development was one of several multi-family developments now proposed in Southeast Portland.

The City moved to dismiss RNRG’s case, contending that, under state law, LUBA could not review building permit applications based on clear and objective standards. LUBA, however, determined that not all the standards were clear and objective, and there was discretion that could be used to determine the height of this apartment building on a site with two different zoning designations. That discretion in determining the height led LUBA last November to conclude that it had jurisdiction to hear the case.

Now that their case could be heard, RNRG was faced with how to make that case. The final order doesn’t mention any challenges to the City’s lack of required onsite parking, as that standard involved no discretion. The one thing RNRG could challenge was the City’s interpretation of an obscure requirement that the “main entrance” for each tenant space be within five feet of the façade facing Division Street and, in fact, face that street. LUBA rejected the City’s interpretation of this requirement that it only applied to non-residential uses as contrary to the text of the regulation. Because the application would have to be revised substantially to meet the City’s code, LUBA reversed (rather than remanded) the City’s decision.

In June, 2011, the DJC published “Of Wineries and Weddings,” where these authors summarized existing legislation in place allowing wineries on land zoned for exclusive farm use (EFU), coupled with rather ambiguous limitations on “agri-tainment” events associated with wineries such as wine-tasting or wine-paired dinners, weddings and music festivals leading. Given the uneven application of the existing standards, the article endorsed the need for comprehensive regulations limiting farm as well as non-farm related “agri-tainment” activities across the board. This need for inclusive legislation was highlighted this month with LUBA’s ruling in Friends of Yamhill County v. Yamhill County.

Stoller Vineyard and Winery occupies 373 acres, of which 180 acres is currently planted in vineyards, though Stoller plans to plant an additional 30 to 40 more acres. The grapes are sold as fruit as well as converted into wine on-site. When approving this use in 2003, a condition was imposed limiting the winery to three events for the tasting and purchasing of wine as well as the operation of a “limited service restaurant.” In this case, the county approved, what LUBA characterized as, the expansion of the existing winery to include a tasting room, commercial kitchen, offices and storage. Petitioners argued that providing a full-service restaurant was a new use. The number of events authorized on the winery includes up to 44 each year with a condition that the gross income from the non-wine related activities may not exceed 25 percent of the gross income from the retail sale on-site of wine produced at the winery.

In WKN Chopin, LLC v. Umatilla County, LUBA reversed the county’s denial of a transmission line on EFU land intended to transmit energy from a new wind generation facility to the electrical grid. The county’s denial was based on a conclusion, under state law, ORS 215.295(2) and local code regulations, that there were alternatives to locating the line on EFU-zoned land and the applicant failed to establish that those alternatives were not feasible.

First, LUBA rejected intervenor’s claim that the use was more properly considered a "commercial utility facility for the purpose of generating power for public use by sale" under ORS 215.283(2)(g) when considered with the wind generation activity as opposed to “utility facility necessary for public services” under ORS 215.283(1)(c) as the County found. Not only was intervenor’s claim not properly preserved and was not raised as a cross-assignment of error challenging the county’s decision, a transmission line is a type of “utility facility” under ORS 215.276(1)(c) in any event.

Second, LUBA re-affirmed a long list of cases, most notably McCaw Communications, Inc. v. Marion County, 96 Or App 552, 556, 773 P2d 779 (1989), holding that an applicant for a utility facility necessary for public service is required to examine only non-EFU-zoned alternatives. An applicant need not examine multiple EFU-zoned alternatives and select the EFU zoned alternative that has the least impact on EFU-zoned land.

Third, local regulations requiring the consideration of alternatives and technological feasibility cannot be imposed on a use permitted under subsection (1) of ORS 215.283 as they are subject only to statutory standards under Brentmar v. Jackson County, 321 Or 481, 496, 900 P2d 1030 (1995), and otherwise they are deemed permitted outright.

It was a rare and strange case that required a creative legal approach to prevent the tearing down of a recently-constructed house in bucolic Douglas County, Oregon. The case centered on a parcel of land purchased by Philip and Cynthia Bowes in 1995 and their subsequent efforts to build a home on that land 16 years later. The Bowes’ neighbors aggressively collaborated to file appeals of the County’s permission to build a house and subsequent extensions granted to delay construction at the Oregon Land Use Board of Appeals (“LUBA”). The Oregon State Court of Appeals issued two opinions in Jones v. Douglas County (Case Nos. A-148612 and A148618) ending the 18-month dispute involving construction of the home that had been opposed by neighbors.

Of the 12 assignment of error presented by opponents to the Columbia River Crossing in the case Weber Coastal Bells v. Metro, LUBA affirmed 11 of them – a resounding loss for opponents.  In its most significant ruling, LUBA found that approving a large proportion of highway improvementsColumbia River I-5 Bridge ca1920 along with light rail did not violate a 1996 state statute adopted to authorize a light rail project.  LUBA reasoned that the scope of the project under the statute includes “any highway improvements” that are described in the Draft or Final Environmental Impact Statement and these improvements need not be related, required by or connected to the siting of the rail line.  LUBA agreed with Metro and other respondents that the highway improvements were “associated” with the light rail component in that it could not have been approved if it did not include a highway component as well.

PORTLAND, OR – December 29, 2010Garvey Schubert Barer, representing Waste Not of Yamhill County, is pleased to report the Oregon Court of Appeals issued a final order in Waste Not v. Yamhill County, Court of Appeals No. A146170, issued December 29, 2010.  The decision affirms the Oregon Land Use Board of Appeals (“LUBA”) final order in Waste Not v. Yamhill County, LUBA No. 2010-002 that Yamhill County violated the law in authorizing the expansion of the Riverbend Landfill. 

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