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Consistent with media reviews of the highlights of 2022, we offer a high-level summary of the most significant decisions to come from the Oregon Land Use Board of Appeals (LUBA) and the courts last year.

State law requires that LUBA track and publish its overall decision-making statistics. In 2022, LUBA received 107 notices of intent to appeal, down from the 127 received in 2021 and 128 received in 2020. Of the 109 decisions issued in 2022 (two were held over from a previous year), LUBA affirmed the local government / agency decision 35 times. Where LUBA disagreed with the local government / agency determination, 28 decisions were remanded, eight were reversed, and 28 dismissed. Said another way, of the 71 appeals that were jurisdictionally sound, LUBA affirmed the local government in half of the cases. Of the one quarter of LUBA decisions appealed to the Oregon Court of Appeals, LUBA鈥檚 decisions were affirmed in 20 cases; that means LUBA has an 80 percent affirmance rate overall 鈥� a pretty good approval rating by any measure.

Beyond the raw numbers, LUBA鈥檚 decisions spanned the gamut from the sublime to the mundane. In an example of the former, the Court of Appeals held that LUBA erred in affirming Marion County鈥檚 decision to allow for airport-related uses without also complying with the procedure for expanding the airport boundary, even where the decision allowed for the airport-related businesses rather than the more traditional airport areas such as runways. In a more typical holding, LUBA remanded a decision in Clackamas County to allow a chiropractic clinic as accessory to a dwelling use for failure to consider the locational relationship between the two uses, in addition to their duration, frequency and relative size.

The largest category of challenges originated with farm / forest / natural resource advocacy groups objecting to county decisions over loss of resource lands to non-resource uses. Of these, the longest running challenges on LUBA鈥檚 docket dealt with a battle in Deschutes County over a destination resort siting that originated in 2008 with no end yet in sight.

Similarly, the Port of St Helens has been struggling since 2014 to designate additional industrial land along the Columbia River. LUBA determined that an admission fee farm 鈥渆xperience program for youth and families鈥� in Marion County, where farm propagation activities were for demonstration and education rather than profit, was not 鈥渁 commercial activity in conjunction with farm use鈥� allowed on land zoned for Exclusive Farm Use (EFU). A private campground in Josephine County providing 25 RV hookups through 12 shared utility pedestals runs afoul of the rule prohibiting individual utility services at private campgrounds.

In reviewing a number of short-term rental regulations in Lincoln County, LUBA held that a ballot measure that made short-term rentals a nonconforming use that must cease when the property is transferred or otherwise after five years ran afoul of the state law protecting the continued operation of nonconforming uses within counties. In a different decision, an amendment to the local business regulations code imposing constraints in maximum occupancy and rental concentrations due to wastewater system capacity, that was unrelated to the comprehensive plan, was not a land use decision.

Most of the city-specific appeals dealt with the recently amended state law requiring the application of clear and objective standards when reviewing housing applications. In a decision in Cannon Beach, LUBA and the Court of Appeals reaffirmed that even though a term may be ambiguous in the abstract, its context can serve to make it clear and objective. Although the state law does allow for a discretionary approval track so long as it also has a clear one, requiring an applicant to secure a zone change to take advantage of the clear track was not permitted and resulted in LUBA reversing a denial for a multifamily housing project in Salem. The city of Eugene continued to struggle with adopting clear and objective standards where LUBA found that evaluating non-vehicular circulation within a quarter-mile radius was not clear and objective where the manner in which the origin and destination are not specified.

Lessons with respect to the parameters of the statewide land use goals emerging from a case in Oregon City included a determination that local governments can rely on state and federal Clean Water Act compliance obligations as a means to achieve Goal 6, relating to water quality. Goal 6 does not require a finding of independent compliance with administrative rules relating to water quality implemented by DEQ. In this same case, LUBA held and the Court of Appeals affirmed that Goal 2, relating to inventories and alternative courses of action, do not impose stand-alone obligations independent of other applicable planning goals.

Although the comprehensive plan typically does not apply independently of zoning regulations once they are deemed 鈥渁cknowledged,鈥� in a challenge of the city of Portland鈥檚 determination for a land use compatibility authorization to expand a fossil fuel terminal, the comprehensive plan remains applicable, even where the acknowledged zoning regulations are otherwise satisfied. That said, remand was appropriate because the findings failed to explain why the proposed operations were not compatible with the city鈥檚 comprehensive plan. More generally, with respect to adequate findings, in a series of cases in the city of Wheeler, LUBA held that in order to deny a quasi-judicial application, a local government must make findings to inform applicants what steps would have been necessary to gain approval or that there was no way to obtain approval.

LUBA continues to provide a timely and highly effective opportunity for review of a wide variety of land use cases throughout the state. If history is any indication, so long as LUBA is adequately funded by the Legislature to the same extent, we should expect no less in 2023.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.