Archive for the ‘LUBA’ Category

Residential Parking and Transit: The Portland Puzzle

Posted on March 2nd, 2013 by

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. (more…)

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TAGS:  Affordable Housing, Land Use in Oregon, Land Use Planning, LUBA, Planning

Further Muddling of Wine-Related Uses on Farmland

Posted on October 12th, 2012 by

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. (more…)

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TAGS:  Land Use in Oregon, Land Use Planning, LUBA

Wind Generation Transmission Line May Locate on EFU Land without Consideration of Alternatives that have Less Impact on Farm Land

Posted on August 14th, 2012 by

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.

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TAGS:  Energy, Land Use in Oregon, LUBA

Clients Keep Home After Appellate Victory; GSB Land Use Team Wins Unusual Case

Posted on December 16th, 2011 by

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. (more…)

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TAGS:  LUBA, Oregon Court of Appeals

Opponents of the Columbia River Crossing Lose at LUBA

Posted on November 3rd, 2011 by

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. (more…)

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TAGS:  LUBA, Planning

Court of Appeals Confirms LUBA Ruling:

Posted on December 29th, 2010 by

PORTLAND, OR – December 29, 2010 – Garvey 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.  (more…)

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TAGS:  Land Use in Oregon, LUBA, Oregon Court of Appeals, Planning