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The Land Use Board of Appeals (LUBA) is the administrative agency mandated by Oregon law to provide review of most land use decisions after the local level. Created in 1979 and the first of its kind in the nation, LUBA was a grand experiment. It took land use reviews out of the courts and placed them in the hands of specialists who could, it was hoped, make more timely and efficient decisions.

LUBA is a state administrative agency. Its review of land use decisions is conducted by three board members appointed by the governor and confirmed by the state Senate. All the referees must be attorneys who have, as a matter of practice, expertise in planning and land use law. With just these three board members and a skeleton staff, LUBA processes and reviews an average of 130 appeals per year. State law provides that LUBA must issue decisions within 77 days after receipt of the record. Although the time it takes to settle record objections and resolve procedural motions often delays this timeline, a participant before LUBA can get through the process within six months, which is lightning-fast compared to the courts and land use review systems in other states.

LUBA鈥檚 principal source of outside revenue comes through its $400 appeal fees, which do not come close to covering LUBA鈥檚 costs. As a result, LUBA relies on continued funding by the Legislature, which does not happen by chance. The hard work of LUBA鈥檚 board members justifies state funding based on its efficient handling of appeals, maintaining a reliable review schedule, and maintaining a high affirmance rate. LUBA decisions are affirmed by the Court of Appeals more than 80 percent of the time, a very high rate indeed. Board members slog through complex cases dealing with wide-ranging issues from farmland protections to large-scale industrial facilities and everything in between. As public employees, board members are not compensated as well as they would be in the private sector. They do this difficult work because they are fiercely loyal to the Oregon land use system and understand how important LUBA is to the overall program.

Nowhere was that commitment better exemplified than with Michael (Mike) Holstun, who passed away in December. Raised in Alabama and Mississippi, Mike began his land use career as a planner for Calvert County, Maryland, before ultimately deciding to head west for law school. He attended Lewis & Clark Law School in Portland, graduating in 1980. Mike spent his early years as an attorney working for Metro and the McEwen Gisvold law firm, before joining the Oregon Department of Justice advising and representing, among other agencies, the Land Conservation and Development Commission (LCDC). In 1987, Mike was first appointed to LUBA, where he served until 1995. He was appointed again in 1998 and retired in 2018, acting as LUBA鈥檚 longest serving board member.

In Mike鈥檚 28 years on the board, Oregon鈥檚 land use program grew and changed. As Oregon鈥檚 economy went from one largely based on natural resources to one driven by technology, Mike was there. Just out of infancy, the Oregon land use system had to meet the challenges of protecting farm and forest land, the challenges of attracting and retaining industrial and commercial uses, and the growing pains of expanding housing opportunities.

The board was also intimately involved with the legal tasks of allocating levels of deference to local government decision-making, and providing procedures for decision-making. For an experiment in compensating landowners when regulations allegedly reduced property values 鈥� Measures 37 and 49, Mike was there. At the height of the building boom in Oregon, when LUBA issued well over 200 opinions per year, twice the number seen today, Mike was there. A simple legal database search reveals that of the 6,538 reported LUBA cases, Mike was an advocate or LUBA board participant in 3,836 鈥� well over half of them.

Although Mike鈥檚 contribution to the land use system cannot be overstated, what is more significant perhaps was the humanity and humility that Mike brought to his role. LUBA is a forum where participants can, and often do, represent themselves without legal counsel. Mike initiated and fiercely defended the practice that each LUBA board member would shake hands with the participant, lawyer and non-lawyer alike, before every oral argument. As another ex-board member, Wendie Kellington, put it: 鈥淚 don鈥檛 know if it was his southern roots, but courtesy to LUBA participants was one of his hallmarks. He always tried to understand 鈥� I mean really understand 鈥� the positions of the parties to appeals. If people made the effort to go to LUBA, he worked to create an environment where people could feel heard.鈥� When asked what is one of the greatest mistakes LUBA practitioners make, Mike responded that it was underestimating the arguments presented by pro se litigants.

Again, Ms. Kellington, who worked with Mike for the whole of her seven years at LUBA, recalled: 鈥淢ike鈥檚 professionalism and respect for others were unwavering. He held no litmus test for earning his respect other than integrity. His legacy at LUBA, and in the lives of those he worked with, is a testament to his enduring commitment to fairness, collaboration, and the thoughtful application of Oregon鈥檚 land use principles.鈥�

At a time when handshakes (and even in-person oral arguments at LUBA) seem to have gone the way of the dodo, we could all do well by personifying these values as Mike Holstun did, as we shepherd Oregon鈥檚 land use program into the future.

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.