OREGON LAND USE BOARD OF APPEAL (LUBA)

Tod A. BasshamBoard Member, LUBA

Overview

I. Oregon Land Use ProgramBrief HistoryLand Use Procedures

II. Land Use Board of AppealsHow Review at LUBA Works

III. Selected Discussion of Historic Preservation Cases and Rules

A Brief History of Land Use Planning

8,000 B.L.U.P. (Before Land Use Planning) :Agriculture Introduced in

Mesopotamia7,999 B.L.U.P. First Land Use Conflict:

Cain v. Abel7,998 B.L.U.P. to 1920 A.D.: Various

Wars over Land Use Conflicts1916 A.D. New York Law Regulating Land

Use Adopted, Upheld

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

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

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

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

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)

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)

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 15-19 (Willamette River, Coastal Protection)

Goal Exceptions

• Local governments can adopt case-by case “exceptions” to goal requirements if:1. Land physically developed, or2. Land is irrevocably committed to non-goal uses by surrounding uses, or3. Reasons justify why goal should not apply and areas not requiring exception cannot accommodate use

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.

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

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

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

Quasi-Judicial Hearings

• ORS 197.763 provides minimum procedures for Q-J hearings on zone changes, permits, etc.

• Notice, Staff Report, Evidence, Rebuttal• Raise It or Waive It

Permit Decisions w/o Hearing

• ORS 215.416 (counties) and 227.175 (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.

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.

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.

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.”

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

Time Is Of the Essence

• ORS 197.830 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 197.850. 91 days after oral argument for the Court of Appeals to issue its decision on appeal from LUBA.

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

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

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

Deference to Local Plan/Code Interpretations

• ORS 197.829(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.

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.

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

LUBA Jurisdiction II

Exceptions to “Land Use Decision”

1. Decisions made under LURs that do not require interpretation or exercise of policy or legal judgment

2. Building permit issued under clear and objective LURs.

LUBA Jurisdiction III

Other Exceptions:• Transportation Improvements authorized

under Comprehensive Plan• Decision on Final Subdivision or Partition

Plat• State Agency Land Use Compatibility

Statements

LUBA Jurisdiction IV

• LUBA also has exclusive jurisdiction over “Limited Land Use” Decisions, which involve decisions within a UGB concerning:

1. Tentative Subdivision or Partition Plat2. Site and Design Review decisions

regulating characteristics of use permitted outright

LUBA Jurisdiction V

• Exhaustion of Local Remedies• Standing of the Petitioners

Appearance, ParticipationAdversely Affected

• Timely Appeal• Petition for Review filed on Time

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

More Beasts of the Jungle

• Variances, adjustments• Nonconforming Use determination and

expansion/alteration• Vested Rights• Annexations• UGB amendments• Use Category

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

LUBA Procedure: The Early Rounds

• Within 21 days of filing NITA:1. Local government must file the local record with LUBA and petitioner2. Motions to intervene must be filed (tolled if not served with NITA)3. Sometimes motions to dismiss filed

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.

LUBA Procedure: Briefing

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

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 10-14 days after RB filed

LUBA Procedure: the Decision

• LUBA (usually) issues its decision within 77 days from date record settled

• Dispositions:1. Affirm the Decision2. Remand the Decision for

Repairs3. Reverse the Decision4. Dismiss appeal

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.

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.

Old Goal 5 Rule

• The old Goal 5 rule, at OAR 660-016, 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 660-023 except for cultural resources.

New Goal 5 Rule

• The new Goal 5 Rule, OAR 660-023, sets out a “standard” process for inventorying and deciding whether and how to protect significant Goal 5 resources.

• OAR 660-023-0200 is the specific rule for historic resources, and partly supersedes the standard process.

• OAR 660-023-0250 determines when Goal 5 applies to plan or code amendments.

OAR 660-023-0200

• 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.

OAR 660-023-0200 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.

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.

Designation Issues

• Must the LG designate? Yes. DLCD v. Yamhill Co., 89-040/42, 17 Or L 1273 (1989)

• Unclear designations. Carlton Dev. LLC v. Portland, 2010-068, 62 Or L 157 (2010); Paulson v. Wa Co, 2001-079.

• Removal of designation. Demlo v. Hillsboro, 2000-160, 39 Or L 207 (2001)

Program Issues

• Ambiguous Text. Burgess v. Corvallis, 2007-060, 55 OL 482 (2008); Save Amazon v. Eugene, 95-087, 29 OrL 335 (1995).

• Amendments to Program. Cox v. Polk Co. 2004-166, 49 OrL 78 (2005); NWDA v. Portland, 2003-162, 50 OrL 310 (2005).

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).

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.

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.)