HomeMy WebLinkAboutMiscellaneous PLANNER 11/20/2008
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26.2.8 LUBA Jurisdiction - Laud Use Decision: Statutory Test - Limited Land Use
Decision. Where an application for city' subdivision approval includes a request for
planned uriit development approval that allows the property to be divided in ways that the
property could not be divided without planned unit development approval, the decision
granting planned unit development subdivision approval is a land use decision, not a
limited land use decision. Wasserburg v. City of Dunes City, 52 Or LUBA 70 (2006).
26.2.8 LUBA Jurisdiction - Land Use Decision: Statutory Test - Limited Land Use
Decision. A decision approving a manufactured home subdivision is a limited land use
decision subject to LUBA's jurisdiction. That the decision includes a condition of
approval that imposes or references system development charges does not mean that the
decision is excluded from LUBA's jurisdiction as'a "fiscal" decision under the reasoning
in State Housing Council v. City of Lake Oswego, 48 Or App 525, 617 P2d 655 (I 980). D
& B Home Investments v. City of Donald, 51 Or LUBA 1 (2006).
26.2.8 LUBA Jurisdiction - Land Use Decision: Statutory Test - Limited Land Use
. Decision. The definition of "limited land use decision" in ORS 197.015(I2)(a) does not
distinguish between preliminary and final plat approval. Both types of approval may be
final decisions or determinations concerning approval or denial of a subdivision, and thus
limited land use decisions subject to LUBA review. Bauer v. City of Portland, 38 Or
LUBA 715 (2000).
26.2.8 LUBA Jurisdiction - Land Use Decision: Statutory Test -.:. Limited Land Use
Decision. Even if an implicit exception for nondiscretionary limited land use decisions
can be read into the definition at ORS 197.015(12), final plat approval ofa planned unit
development may be discretionary. Depending upon the particular circumstances of each
preliminary plat approval and attendant conditions, the determination of whether final
plat approval should be granted may involve the exercise of significant factual and legal
judgment. Bauer v. City of Portland, 38 Or LUBA 715 (2000).
26.2.8 LUBA Jurisdiction - Land Use Decision: Statutory Test - Limited Land Use
Decision. .Because the city's decision to allow a continuation of an existing conditiOllal
use permit is not a limited land use decision under ORS 197.015, a subsequent statement
of appeal rights in a notice letter provided by the city is not dispositive of whether
petitioner's appeal was timely filed. Lloyd Dist. Community Assoc. v. City of Portland, 30
Or LUBA 390 (I 996). .
26.2.8 LUBA Jurisdiction - Land Use Decision: Statutory Test - Limited Land .Use
Decision. Where a decision to eliminate conditions of approval requires local review
under code zone change standards, the decision is a land use decision, and not a limited
land use decision. Lamm v. City of Portland, 28 Or LUBA 468 (1995).
, 26.2.8 LUBA Jurisdiction - Land Use Decision: Statutory Test - Limited Land Use
Decision. The limited land use decisions described by ORS 197.015(I2)(b) fall
somewhere between (I) outright permitted uses for which approval involves no
discretionary review; and (2) uses allowed subject to application of discretionary
approval standards that may require denial of the use altogether (as opposed to.
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discretionary approval standards that only regulate the use's physical characteristics).
Fechtig v. City of Albany, 27 Or LUBA 480 (1994).
26.2.8 LUBA Jurisdiction - Laud Use Decision: Statntory Test - Limited Land Use
Decision. A local government wishing to identify in its plan or land use regulations uses
qualifying for approval as limited land use decisions under ORS 197.015(I2)(b) must
make it clear the discretionary approval standards applied to such uses may only be
applied to regulate the use's physical characteristics and may not be used to deny
approval of the use altogether. Fechtig v. City of Albany, 27 Or LUBA 480 (1994). '
26.2.8 LUBA Jurisdiction - Land Use Decision: Statutory Test - Limited ,Laud Use
Decision. A decision approving a tentative subdivision plat for land within an urban
growth boundary is a "limited land use decision." ORS 197.0 15(12)(a). Barrick v. City of
Salem, 27 Or LUBA 417 (1994).
26.2.8 LUBA Jurisdiction - Land Use Decision: Statutory Test - Limited Land Use
Decision. A city's failure to incorporate comprehensive plan provisions applicable to
limited land use decisions into its land use regulations, as required by ORS 197.195(1),
means only that applicable plan provisions continue to apply to limited land use
decisions. It has no bearing on whether a development proposal meets the ORS
197.015(12) definition of "limited land use decision." Shelter Resources, Inc. v. City of
Cannon Beach, 27 Or LUBA 229 (1994).
26.2.8 LUBA Jurisdiction - Land Use Decision: Statutory Test - Limited Land Use
Decision. A letter by a city planning director concerning the application of code
provisions relevant to the v~lidity of tentative plan approvals and approval of final plats,
for certain subdivisions within an urban growth boundary, is a limited land use decision.
Forest Park Neigh: Assoc. v. City of Po rtland , 27 Or LUBA 215 (1994).
26.2.8 LUBA Jurisdictiou - Land Use Decision: Statutory Test - Limited Land Use
Decisiou. Where no land use standards govern a local government decision to allow the
applicant to abandon a permit application that led to a permit decision remanded by
LUBA and instead to submit a new application governed by amended approval standards,
the decision does not, by itself, constitute a land use decision or limited land use decision.
Fechtig v. City of Albany, 27 Or LUBA 666 (199~).
26.2.8 LUBA Jurisdiction - Land Use Decision: Statutory Test - Limited Land Use
Decisiou. Where the petition for review alleges the challenged decision applies
provisions of a local government plan and land use regulations, it is not fatalto LUBA's
jurisdiction that the petition for review improperly characterizes the decision as a "land
use decision" rather than a "limited land use decision." Schatz v. City of Jacksonville, 25
Or LUBA 327 (1993).
26.2.8 LUBA Jurisdiction - Land Use Decision: Statutory Test - Limited Land Use
Decision. To constitute a "limited land use decision" under ORS 197.015(12), the
challenged local government decision must relate to "a site within an urban growth
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boundary" (UGB). For purposes of determining whether a challenged decision is a
limited land use decision, there is no establIshed UGB until the local government's plan
and land use regulations are completely acknowledged. Schatz v. City of Jacksonville, 25
Or LUBA 327 (1993).
26.2.8 LUBA Jurisdiction - Land Use Decision: Statutory Test - Limited Land Use
Decision. A decision granting subdivision final plat approval is reviewable by LUBA as a
limited land use decision. ORS 197.015(12)(a); 197.825(1). Warren v. City' of Aurora, 23
Or LUBA 507 (1992).
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~ 33.2 Land Divisious - Partitions. Only those impacts that reasonably flow from the
./f'- approval granted may be considered when imposing exactions to ameliorate those
~. . impacts. McClure v. City of Springfield, 37 Or LUBA 759 (2000).
r -~ 33.2 Land Divisions - Partitions. During its review of a proposed partition, a city may /__
*,y' consider the impact that future dwellings may have on public infrastructure, where the ~
partition approval is the last land use decision necessary to establish dwellings on the
resulting parcels. McClure v. City of Springfield, 37 Or LUBA 759 (2000).
33.2 Land Divisions - Partitions. An ordinance allowing a county to revoke otherwise
final and unreviewable partition approvals is a "retroactive ordinance" within the
meaning of ORS 92.285. Church v. Grant County, 37 Or LUBA 646 (2000).
33.2 Land Divisions - Partitions. Before ]973, ORS 92.014 subjected the creation of
streets or ways to county approval only when the street or way was created for the
purpose of partitioning land. Creation of a 60-foot wide parcel to provide access across a
parent parcel to a separate, pre-existing parcel in different ownership is not "for the
purpose of partitioning land" and thus did not require county approval under ORS
92.014. Tarjoto v. Lane County, 36 Or LUBA 645 (1999).
33.2 Land Divisions - Partitions. Where a county approves an application that creates a
new parcel, that approval is a partition as defined by ORS 92.0 I 0 notwithstanding that
the county also approved a lot line adjustment involving the parent parcel in the same
proceeding. Hartmann v. Washington County, 36 Or LUBA 442 (1999).
33.2 Land Divisions - Partitions. The legal effect of a "partition," as defined at ORS
92.010, is to create new parcels as of the date the partition plat is approved. The parcels
resulting from a partition are thus "created" as of the date the plat is approved" for
purposes of the nonfarm dwelling provisions of OAR 660-033-0130 and ORS 215.284.
Hartmann v. .Washington County, 36 Or LUBA 442 (1999).
33.2 Land Divisions - Partitions. The definition of "Date of Creation" at OAR 660-033-
0020(4) expands the circumstances in which parcels are "created" for purposes of siting a
nonfarm dwelling to include lot line adjustments or similar reconfigurations that have the
effect of qualifYing the parcel for a dwelling. The definition does not impliedly narrow
the set of circumstances that create a parcel to include only those events that have the
effect of qualifYing a parcel for a dwelling." Hartmann v." Washington County, 36 Or
LUBA 442 (1999).
33.2 Land Divisions - Partitions. A partition, as defined b"y ORS 92.010, is not a
"reconfiguration" of the boundaries of a parcel within the meaning of OAR 660-033-
0020(4) because the legal effect of partition is to create new parcels. Hartmann v.
Washington County, 36 Or LUBA 442 (1999).
33.2 Land Divisions - Partitions. Where a local land division ordinance mandates that
the size of proposed parcels be greater than or equal to the size of the typical commercial
agricultural enterprise in the area, a local government misconstrues that ordinance by
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requiring only that the size of the proposed parcel be similar to the size of other parcels in
the area. Wood v. Crook County, 36 Or LUBA 143 (1999).
33.2 Land Divisions - Partitions. Where an existing parcel is divided into three new
parcels with one of the new' parcels containing an existing house, the new parcel
containing the house is not properly considered an existing parcel simply because it
contains the existing house. Sunningdale-Case Heights Assoc. v. Washington Co., 34 Or
LUBA 549 (1998).
33.2 Land Divisions - Partitions. A property line adjustment is limited to relocation of
common property lines. Where a decision reconfigures property lines so that entire
parcels are moved and property lines that are not common are moved, the decision does
not approve a property line adjustment. Goddard v. Jackson County, 34 Or LUBA 402
(1998).
33.2 Land Divisions - Partitions. A decision that relocates property lines that are not
common to abutting properties reconfigures the property in a manner that violates the
definition of "property line adjustment" at ORS 92.010(11) and the statutory distinction
between a property line adjustment and replat, and such action is prohibited as a matter of
law. Goddard v. Jackson County, 34 Or LUBA 402 (1998).
33.2 Land Divisions - Partitions. To establish implied acceptance of a road dedication:
(I) the partition plat must include a dedication, and (2) parcels must have been sold with
reference to the partition plat containing the dedication. Where petitioner fails to establish
either the plat dedication or sales with reference to the partition plat dedication, there is
no Implied dedication. Petersen v. Yamhill County, 33 Or LUBA 584 (1997).
33.2 Land Divisions - Partitious. Where a hearings officer's interpretation, that the
county's street frontage requirement mandates street frontages be on a public road or
street is contrary to the plain language of the county's zoning ordinance, a denial of a
partition based solely on that interpretation will be reversed. Miller v. Clackamas County,
31 Or LUBA 104 (1996).
33.2 Laud Divisions - Partitions. Where a county has never made a decision to partition
a parcel, the county's. approval of a lot line adjustment, which is premised on the
assumption that a partition has occurred, must be reversed. Higgins v. Marion County, 30
Or LUBA 426 (1996).
33.2 Land Divisions - Partitions. Both the applicable county ordinance and ORS
chapter 92 indicate reliance on plat recording as the event which establishes the finality
and permanence of a land division. Petree v. Marion County, 29 Or LUBA 449 (1995).
33.2 Land Divisions - Partitions. Unless prohibited by a local ordinance, a property
owner may apply for a second partition of land during the same calendar year as a first
partition involving the same land is recorded. ORS chapter 92 is satisfied by a condition
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delaying tentative approval of the second partition to the following calendar year. Petree
v. Marion County, 29 Or LUBA 449 (1995).
33.2 Land Divisions - Partitions. ORS 215.428(3), which states that approval or denial
of an application shall be based upon the standards and criteria that were applicable at the
time the application was first submitted, does not require a local government processing a
partition application to proceed as if factual circumstances existing at the time of
application remain unchanged. Petree v. Marion County, 29 Or LUBA 449 (1995).
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33.2 Land Divisions - Partitions. If a local government approves a proposed partition l
with conditions requiring exactions, the local government must ensure that the
requirement of Dolan v. City of Tigard, 512 US 374, 114 S Ct 2309, 2319-20, 129
L Ed2d 304 (1994) for "individualized determination[s] that the required dedication is
related both in nature and extent to the impact of the proposed development" is satisfied. S
Neuman v. Benton County, 29 Or LUBA 172 (1995). . .'
33.2 Land Divisions - Partitions. Where the local code requires a local government to
make a particular determination in acting on a partition application, the local government
does not lack authority to make that determination. Hilderbrand v. Marion County, 28 Or
LUBA 703 (1995).
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33.2 Land Divisions - Partitions. Identifying the area to be considered and the overall
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land use pattern of that area are prerequisites to determining whether a proposed partition ~
satisfies a code requirement that it "not materially alter the stability of the land use ~v ~
pattern of the area." McNamara v. Union County, 28 Or LUBA 396 (1994). ~.~
33.2 Land Divisions - Partitions. A local government may not defer determinations Of}1ii~
compliance with approval standards applicable to partition approval to the building ~ '1r
permit approval stage. Beckv. City of Happy Valley, 27 Or LUBA 631 (1994). . ~
33.2 Land Divisions - Partitions. Local government denial of proposed partItIOns
because the ability of the school district to provide the level of school services required
by certain plan policies has not been established does not constitute the imposition of a
development moratorium prohibited by ORS 195.1 10(8). Beck v. City of Happy Valley,
27 Or LUBA 631 (1994).
33.2 Land Divisions - Partitions. Where an approval standard for partitioning timber
zoned property into nonresource parcels requires that the subject property be "generally
unsuitable land for the production of farm or forest products," and petitioner does not
challenge a county determination that the subject property is generally suitable for farm
use, that determination provides an independent basis for affirming the county's decision
to deny the partition. Newsome v. Clackamas County, 27 Or LuBA 578 (1994).
33.2' Land Divisions - Partitions. ORS 215.263 authorizes counties to approve
partitions creating new parcels for farm uses and nonfarm uses in EFU zones. However,
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. ORS 215.263 does not authorize subdivision of land zoned for exclusive farm use. 1000 ,
Friends of Oregon v. Marion County, 27 Or LUBA 303 (1994).
33.2 Land Divisions - Partitions. A condition of partition approval requiring
consolidation of existing driveways into a single driveway to address comprehensive plan
and local code policies concerning traffic safety is justified, even though the property is
developed and new development is not proposed as part of the partition request, where
the property. could be developed more intensively in the future. Kostenborder v. City oI
Salem, 25 Or LUBA 440 (I 993).
33.2 Land Divisions - Partitions. A condition of partition approval requiring that three
existing driveways presently serving property to be partitioned be consolidated into a
single driveway does not "take" a cognizable property interest, within the meaning of the
Fifth Amendment to the U.S. Constitution or Article I, section 18, of the Oregon
Constitution. Such a condition. simply requires that a property owner exercise the
property right of access differently. Kostenborder v. City of Salem, 25 Or LUBA 440
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(I 993).
33.2 Land Divisions - Partitions. Where there is a reasonable relationship between the
development potential of a parcel to be divided and the impacts reasonably attributable to
the divided parcel on the one hand, and the city's need to respond to legitimate traffic
concerns on the other, and it would be more difficult to address such concerns when there
are three parcels rather than a single parcel, notwithstanding the lack of current plans to
develop the property further, a condition requiring consolidation of existing driveways is
appropriate. Kostenborder v. City of Salem, 25 Or L\:JBA 440 (I 993).
33.2 Land Divisions - Partitions. LUBA will not reverse or remand a local government
decision refusing to issue a building permit for a structure to be placed on a parcel
unlawfully divided, pursuant to a local code requirement that no building'permit may be
issued if the parcel of land on which a structure is to be placed or used is in violation of
any local ordinance. Woosley v. Marion County, 24 Or LUBA 231 (I 992).
33.2 Land Divisions - Partitions. Findings that a parcel is "an ideal size for a small
roadside parcel" are inadequate to demonstrate compliance with a local code standard
requiring that a parcel be no larger than necessary to accommodate the proposed use.
DLCD v. Curry County, 24 Or LUBA 200 (I 992).
33.2 Land Divisions - Partitions. A lot line adjustment is not a partition and cannot
create additional units of land. ORS 92.015(7)(b). McKay Creek Valley Assoc. v.
Washington County, 24 Or LUBA 187 (1992).
33.2 Land Divisions - Partitions. The text of ORS 92.017, and its legislative history,
make it clear that the functions of 0 RS 92.017 are (I) to prevent local governments from
refusing to recognize lawful divisions of land such that lots and parcels could not be sold
to third parties, and (2) to establish that the property lines established by such land
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divisions remain inviolate, absent the employment of a specific process to eliminate such
property lines. Kishpaugh v. Clackamas County, 24 Or LUBA 164 (1992).
33.2 Land Di~isions - Partitions. Nothing in either the text of ORS 92.0] 7 or its
legislative history suggests that all lawfully created lots and parcels must be recognized
by local government as being separately developable. Kishpaugh v. Clackamas County,
24 Or LUBA 164 (1992).
33.2 Land Divisions - Partitious. Where county regulations establish different approval
standards for major and minor partitions, a county's error in treating an application as
being for a minor partition, rather than for a major partition, is not harmless. Schrock
Farms, Inc. v. Linn County, 24 Or LUBA 58 (1992).
33.2 Land Divisions - Partitions. Where governing land use standards are not amended
or modified, the circuit court, not LUBA, has jurisdiction to determine whether an urban
subdivision or partition decision violates applicable approval standards. Sully v. City of
Ashland, 20 Or LUBA 428 (1991).
33.2 Land Divisions - Partitions. While a decision to approve a zone change does not
approve a "permit," within the meaning of ORS 227.160(2), a decision which approves
both a variance and a minor partition does approve a "permit." Harvard Medical Park,
Ltd. v. City of Roseburg, 19 Or LUBA 555 (1990).
33.2 Land Divisions - Partitions. A local government commits harmless error by
mischaracterizing and reviewing a "major partition" as though it were a "subdivision," as
those terms are defined in the city's code, where petitioner fails to identify any approval
criteria which impose different standards on major partitions and subdivisions. Vestibular
Disorders Consult. v. City of Portland, 19 Or LUBA 94 (1990).
33.2 Land Divisions - Partitions. A city may rely on ORS 92.090(3), which states that a
subdivision or partition may not be approved unless streets are "dedicated without any
reservation," to require immediate, rather than future, dedication of required rights of
way. Vestibular Disorders Consult. v. City of Portland, 19 Or LUBA94 (1990).
33.2 Land Divisions - Partitions. To demonstrate county denial of lot of record status
exceeds the authority granted under ORS 92.017, petitioner must establish an alleged lot
or parcel was lawfully created and, therefore, is within the scope of ORS 92.017. Atkins
v. Deschutes County, 19 Or LUBA 84 (1990). '
33.2 Land Divisions -Partitions. A county does not misapply its Lot of Record
ordinance by failing to recognize units of land which (I) were not created under zoning
regulations regulating partitions, (2) were not created pursuant to partition proceedings
conducted under ORS Chapter 105, and (3) do not constitute a "partition" as that term is
defined in ORS 92.010, as parcels created by partition. Atkins v. Deschutes County, 19 Or
LUBA 84 (1990).
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33.2 Land Divisions - Partitions. Under ORS 215.010(1), when the word "parcel" is
used in ORS chapter 215, the parcel must be a lawfully created parcel, in the sense that
the parcel's date of creation either predated any applicable laws governing partitions or
the parcel was created in compliance with those laws. Reeves v. Yamhill County, 53 'Or
LUBA 4 (2006).
33.2 Land Divisions - Partitions. When the definitions of the relevant terms set out in
ORS chapter 92 are read together, whether a division of land creates "parcels" or "lots"
depends the number units of land that one or more divisions of land in a single year
produce. If the division or divisions produce four or more units of land, they are lots; if
they produce three of fewer, they are parcels. Reeves v. Yamhill County, 53 Or LUBA 4
(2006).
33.2 Land Divisions - Partitions. Applying the contextual analysis that is required by
Maxwell v. Lane County, 178 Or App 210, 35 P3d 1128 (2001), adhered to as modified
179 Or App 409, 40 P3d 532,(2002), even though ORS 215.750(1) does not expressly
state that the references in that statute to "lots" are limited to lawfully created lots, and'
even though the relevant definitions in ORS 92.010 do' not expressly require that a lot
must be a lawfully created lot, if those statutes are read in context with ORS 92.012,
92.018(1), 92.025(1) and ORS 215.010(l)(a), it is sufficiently clear that when the
legislature used the term "lot" in ORS 215.750(1) it did not mean to include unlawfully
created lots. Reeves v. Yamhill County, 53 Or LUBA 4 (2006).
33.2 Land Divisions - Partitions. County authority to approve forest template dwellings
derives from ORS 215.750(1). In exercising the authority granted by ORS 215.750(1), a
county may not apply a county definition of "lot" to recognize lots that could not be
recognized under ORS 215.750(1). The county may not set a lower standard for
approving forest template dwellings under county legislation than the stand<ird that is set
by ORS 215.750. Reeves v. Yamhill County, 53 Or LUBA 4 (2006).
33.2 Land Divisions - Partitions. Even if a local government could recognize partial
parcel annexations as sufficient to legally divide a parcel, where a local lot of record code
definition does not recognize partial parcel annexation as sufficient to legally divide the
annexed portion of a parcel from the portion of a parcel that is not annexed, the annexation
does not have the effect of dividing the parcel. Masson v. Multnomah County, 48 Or LUBA
100 (2004).
33.2 Land Divisions - Partitions. The County Assessor's assignment of a new tax lot
number to the part of a 5.45-acre parcel that was annexed, while retaining the prior tax lot
number for the part of the 5.45-parcel that was not annexed, is not sufficient to divide the
5.45-acre parcel into two different parcels. Masson v. Multnomah County, 48 Or LUBA
100 (2004).
33.2 Land Divisions -. Partitions. Where 3.63 acres of a 5.45-acre parcel are located
outside a city and are conveyed improperly by deed to a new owner, the original owner's
subsequent recording of a final plat for the 1.82 acres inside the city, which were retained
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by the original owner, does not have the effect of legally creating a 3:63'-acre parcel.
Masson v. Multnomah County, 48 Or LUBA 100 (2004).
33.2 Land Divisions - Partitions. Absent some demonstration that recording a partition plat
with the county clerk requires the application of statewide planning goals, comprehensive
plan policies or implementing regulations, a county clerk's act of recording a signed partition
plat'is not a land use decision or a limited land use decision. Hammer v. Clackamas County,
45 Or LUBA 32 (2003).
33.2 Land Divisions - Partitions. A city's application of general land division standards to a
proposed minor partition provides no basis for reversal or remand, where it is clear from the
, context of the provision that applications for mioor partitions must satisfY more than just
those requirements that apply-to minor partitions alone. Martin v. City of Dunes City, 45 Or
LUBA 458 (2003).
33.2 Land Divisions - Partitions. An earlier city decision that permitted access from a two-
acre parcel via a 20"foot wide easement does not bar the city from requiring a 50-foot wide
ea.sement for two parcels subsequently created from that two-acre parcel. Martin v. City of
Dunes City, 45 Or LUBA 458 (2003).
33.2 Land Divisions - Partitions. A city approval of a partition that creates three parcels
does not constitute a "contract" that is breached when the city requires that additional access
be provided for parcels created from one of those three parcels. Martin v. City of Dunes City,
45 Or LUBA 458 (2003).
33.2 Land Divisions - Partitions. A local ordinance that requires an applicant for a
'partition to improve the entire 3,500-foot length of a private road providing access to the'
property, including widening existing easements across private property and improving
the road to full county road standards, is a possessory exaction requiring off-site
improvements and is therefore subject to the "rough proportionality" requirement of
Dolan v. City of Tigard, 512 US 374,114 S Ct 2309,129 L Ed 2d 304 (1994). Dudek v.
Umatilla County, 42 Or LUBA 427.
33.2 Land Divisions - Partitions. A city's failure to respond to issues raised below
regarding whether the "street frontage" of a flag lot is the same as its "front building line"
provides no basis for remand, where it is clear under the city's land division ordinance
that "street frontage" and "front building line" are not the same. Webb v. City of Bandon,
39 Or LUBA 584 (2001).
33.2 Land Divisions - Partitions. An ambiguous assertion that a driveway providing
access to a proposed flag lot does not qualifY as a street is insufficient to raise an issue
that the proposed minor partition creates a street and therefore must be approved as a
major partition and comply with the criteria applicable to major partitions. Webb v. City
of Bandon, 39 Or LUBA 584 (2001).
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45.2 Conditions of Approval- Authority to Impose. Where an application to remove a
Planned Development Overlay meets all of the applicable criteria, a local government
errs in requiring the applicant's property to be rezoned as a condition of approval in
approving the application. 7th Street 'Station LLC v. City of Corvallis, 55 Or LUBA 321
(2007).
45.2 Conditions of Approval - Authority to Impose..A hearings officer's failure to
address arguments that the applicant should improve transportation facilities affected by a
proposed destination resort provides no basis for reversal or remand, where a prior
development agreement and two earlier development approvals conclusively established
the type and extent of transportation improvements the applicant is obligated to make in .
developing the resort, and the petitioners cite no authority for the hearings officer to
require different improvements in approving a subdivision within that resort. Broken Top
Community Assoc. v. Deschutes County, 54 Or LUBA 84 (2007). .
45.2 Conditions of Approval -Authority to Impose. A county code provision that
authorizes a county to impose conditions designed to address the adverse impacts of the
proposed use or development does not authorize a county to impose conditions to
r~mediate zoning violations on the property that are unrelated to the proposed use or
development. Applebee v. Washington County, 54 Or LUBA 364 (2007). .
.45.2 Conditions of Approval- Authority to Impose. Under ORS 197.522 and similarly
worded local law requirements, a city is obligated to consider and impose any conditions
of approval proposed by the permit application if such conditions would allow the city to
approve a conditional use permit application that would otherwise not meet approval
criteria. However, under those authorities the city is not obligated to take the initiative to
develop such conditions on its own or develop the evidentiary record that might be
needed to impose such conditions. Caster v. City of Silver ton, 54 Or LUBA 441 (2007).
45.2 Conditions of Approval- Authority to Impose. Where a local government's only
claimed basis for imposing an exaction that requires off-site road improvements is that a
subdivision would otherwise violate a code standard rega~ding street system impacts, and
LUBA finds that the local government has not established that the subdivision would
violate the code standard, there is also no basis to impose the exaction. Pac West II, Inc. v.
Cityof Madras, 53 Or LUBA 241 (2007).
45.2 Conditions of Approval - Authority to Impose. Where a city's code does not
expressly authorize a city to impose a condition requiring annexation on its decision'
approving an application to partition unincorporated land, but the code only authorizes
the city to approve partitions of unincorporated lands that are subject to an annexation
agreement and the city's only other option would be to deny the partition application, the
city correctly interprets its code to approve the application with the annexation agreement
condition. Wickham v. City of Grants Pass, 53 Or LUBA 261 (2007).
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45.2 Conditions of Approval - Authority to Impose: Federal law preempts local zoning
conditions of approval that are imposed to regulate radio frequency interference. Save Our
Skyline v. City of Bend , 48 Or LUBA 192 (2004).
45.2 Conditions of Approval - Authority to Impose, It does not .matter whether
conditions that are imposed to regulate radio frequency interference are imposed under
general zoning conditional use criteria or local regulations that were adopted to regulate
radio frequency interference directly. It is the purpose for imposing the condition that is
important, and if the condition is imposed to regulate radio frequency interference, it is .
preempted by federal law. Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004).
45.2 Conditions of Approval-": Authority to Impose. Federal law does not preempt local
laws that regulate the visual and aesthetic impact of radio towers and the antennas placed
on those towers. Save Our Skyline v. City ofBend,48 Or LUBA 192 (2004).
45.2 Conditions of Approval - Authority to 1m pose. A condition of approval requiring
an applicant to acquire adjacent property either by sale or eminent domain does not
violate a code provision requiring the signatures of all property owners on an application
where the application did not propose use of adjacent property. Kurahashi Partners v.
City of Beaver ton, 46 Or LUBA 791 (2004).
45.2 Conditions of Approval- Authority to Impose. Even if ORS 197.522 can be read
to. apply to a city decision to approve a partition and can be read to limit the types of
conditions that may be imposed to "reasonable conditions," ORS 197.522 does not place
a burden on a local government to demonstrate that its conditions are reasonably
necessary to address particular circumstances presented in the proposed partition. Martin
v. City of Dunes City, 45 Or LUBA 458 (2003).
45.2 Conditions of Approval - Authority to Impose. Even if ORS 197.522 is
applicable to a decision to approve a minor partition, ORS 197.522 does not require a city
to modify its minimum right~of-way requirements to respond to arguments that the right-
of-way requirements are excessive in a particular case. Martin v. City of Dunes City, 45
Or LUBA 458 (2003).
45.2 Conditions of Approval - Authority to Impose. A condition of approval limiting
sales of nonfarm-related items in a farm feed store to 10 percent of total sales, rather than
the 10 to 20 percent of total sales that the applicant proposed, does not make such a
significant change in the permit application that a new application must be required.
Barge v. Clackamas County, 39 Or LUBA 183 (2000);
45.2 Couditions of Approval - Authority to Impose. Conditions of approval requiring
Tri-Met to install restrooms and drinking fountains for the westside corridor project are
not "reasonable and necessary" within the meaning of Oregon Laws 1991, chapter 3,
section 7(1)(b), because those improvements are not required by the final environmental
impact statement, and the project can be completed and operate without the required
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improv~ments. Tri-County Metro Trans. Dis/. v. City of Beaver/on, 31 Or LUBA 214
(1996) .
'45.2 Conditions of Approval - Authority to Impose. Conditions of approval requiring
Tri-Met to install an enhanced trackway and esplanade for the westside corridor project
are not "reasonable and necessary" within the meaning of Oregon Laws 1991, chapter 3,
section 7(1 )(b), because the project can be completed and operate without the required
improvements. Tri-County Metro Trans. Dis/. v. City of Beaver/on, 31 Or LUBA 214
( 1996).
45.2 Conditions of Approval - Authority' to Impose. Whether or not a local
government has authority to design and construct a road owned by another jurisdiction
has no bearing on whether the local government can condition development approval
upon a finding that the road be able to accommodate a proposed development. Clark v.
CitY of Albany, 29 Or LUBA 325 (1995).
45.2 Conditions of Approval- Authority to Impose. Ass'ignments of error that contend
disputed, conditions of approval either exceed a local government's authority under, or
improperly construe, applicable law, if sustained, provide a basis for reversal or remand
of a challenged decision, regardless of whether the challenged decision is a land use
decision or limited larid use decision. Tri-County Metro. Trans. Dis/. v. City of
Beaver/on, 28 Or LUBA 78 (I 994}
45.2 Conditions of Approval - Authority to Impose. If a condition is necessary for
consistency with a final order approving a light rail transit (LRT) facility, under Oregon
Laws 1991, chapter 3, section 7(1)(b), a local government is required to impose such a
condition in approving a local permit for the LRT facility, and the limitations in the
second sentence of that section do not apply. Tri-County Metro, Trans. Dis/. v. City of
Beaver/on, 28 Or LUBA 78 (1994).
45.2 Conditions of Approval - Authority to Impose. Because the second sentence of
Oregon Laws 1991, chapter 3, section 7(1)(b), imposes' limitatio~s on a local
'government's authority to irripose conditions on a local' permit for a light rail transit
facility, the local government has the burden of demonstrating that any conditions which
are not required by Tri-Met's "final order" comply with these limitations. Tri-County
Metro. Trans. Dis/: v. City of Beaver/on, 28 Or LUBA 78 (1994).
45~2 Conditions of Approval ~ Authority to Impose. Under Oregon Laws 1991,
chapter 3, section 7(1)(b), a "necessary" condition is a condition required for a light rail
transit project to meet applicable permit criteria in a local government's comprehensive
plan or code. However, such a condition cannot be imposed if by itself, or together with
other conditions, it would prevent implementation of the approved light rail transit
project. Tri-County Metro. Trans. Dis/. v. City of Beaver/on, 28 Or LUBA 78 (1994).
45.2 Conditions of Approval - Authority to Impose. Even if a condition of land use
approval is not an "exaction" subject to the "rough proportionality" requirement of Dolan
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v. City ofTigard, conditions of land use approval must support some legitimate planning
purpose and must be authorized by the local government's comprehensive plan or land
use regulations. Davis v. City of Bandon, 28 Or LUBA 38 (1994).
45.2 Conditions of Approval - Authority to Impose. A code section authorizing
conditions "requiring design features which minimize environmental impacts * * *" is
sufficient authority to impose a condition that an identified wetland be crossed by a
bridge rather than a road placed on fill. Where the record includes testimony expressing
concern about placing fill in the wetland, the record is sufficient to show such a condition
furthers a valid planning purpose. Davis v. City of Bandon, 28 Or LUBA 38 (1994).
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45.3 Conditions of Approval ~ Exactions. An agreement by a property owner to
establish a walkway from a vacated street west of the property to an existing street
east of the property, in order to provide pedestrian access to a building on the
property, does not necessarily constitute a voluntary agreement to deed a public
easement for a sidewalk connecting the vacated street with the existing street.
Hallmark Inns v. City of Lake Oswego, 43 Or LUBA 62 (2002).
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45.3 Conditions of Approval - Exactions. Where a city requires that a property
owner grant an easement across its property to provide pedestrian access between a
vacated street and an exi~ting street as a condition of development approval, and
detennines that the easement will satisfy city requirements for connectivity, the city
has established a nexus between the exaction and the city's legitimate governmental
interest in ensuring adequate transportation connectivity. Hallmark Inns v. City of
Lake Oswego, 43 Or LUBA 62 (2002).
45.3 Conditions of Approval - Exactions. In requiring an easement for a pedestrian
walkway as a condition of development approval, a city may consider the impacts that
reasonably flow from the approval granted, including the possible use of the walkway
by employees. of the development to access adjoining streets and by. residents of
neighboring properties to access the development on foot or by:bicycle. Hallmark
Inns v. City of Lake Oswego, 43 Or LUBA 62 (2002).
45.3 Conditions of Approval- Exactions. A city adequately quantifies the impact of
a p-oposed development on the area's bicycle and pedestrian transportation system
and establishes that an exaction for a pedestrian walkway across the subject property
is roughly proportional to the impact of the development where the city: (I) considers
the types of uses in the vicinity and concludes that the walkway is necessary to allow
access to a transit stop and other neighborhood amenities; (2) explains that persons
working at or patronizing the development would be impeded from accessing a
neighborhood attraction to the west of the subject property without the walkway; and
(3) explains that the subject property could be developed as six individual lots, with
sidewalks required for each, and the decision to combine the lots into one
development has impacts on the city's transportation system that the required
easement ameliorates. Hallmark Inns v. City of Lake Oswego, 43 Or LUBA 62 (2002).
i45.3. Cond.itions' of Approval - Exactions. Incremental impacts .on a transportation
faCIlity attributable to a proposed development may support an exactIOn. McClure v. City
of Springfield, 39 Or LUBA 329 (2001).
45.3 Conditions of Approval - Exactious. LUBA will uphold an exaction requiring the
dedication of right-of-way where the city's findings demonstrate that the exaction is
roughly proportional to the impacts caused by the development, including any benefits
the development receives by virtue of the exaction. McClure v. City of Springfield, 39 Or
LUBA 329 (2001).
45.3 Conditions of Approval - Exactions. Where a city fails to establish a relationship
between vehicular and nonvehicular impacts of a proposed development and a required
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dedication for sidewalks, the exaction is not supportable under Dolan v. City of Tigard,
512 US 374,114 S Ct 2309,129 L Ed 2d 304 (1994). McClure v. City of Springfield, 39
Or LUBA 329 (2001).
45.3 Conditions of Approval- Exactions. A waiver of remonstrance to the formation of
a local improvement district is not subject to the analysis required by Dolan v. City of
Tigard, 512 US 374,114 SCt 2309, ]29 L Ed 2d 304 (1994) because it, by itself, does
not result in the. loss of property. McClure v. City of Springfield, 39 Or LUBA 329
(2001).
45.3 Conditions of Approval - Exactions. Only those impacts that reasonably flow
from the approval granted may be considered when imposing exactions to ameliorate
those impacts. McClure v. City of Springfield, 37 Or LUBA 759 (2000).
45.3 Conditions of Approval - Exactions. During its review of a proposed partition, a
city may consider the impact that future dwellings may have on public infrastructure,
where the partition approval is the last land use decision necessary to establish dwellings
on the resulting parcels. McClure v. City of Springfield, 37 Or LUBA 759 (2000).
45.3 Conditions of Approval - Exactions. It is appropriate to include some
consideration of the benefits to the parcels created by a partition, as well as the impacts
from the new parcels, in the rough proportionality analysis required by Dolan v. City of
Tigard, 512 US 374, 114 S Ct 2309, 129 L Ed 2d 304 (1994). McClure v. City of
Springfield, 37 Or LUBA 759 (2000).
45.3 Conditions of Approval - Exactions. In reviewing findings adopted to support the
imposition of exactions, LUBA first determines if any identified impacts or benefits are
not relevant for the purposes of the rough proportionality analysis required by Dolan v.
CityofTigard, 512 US 374, 114 S Ct2309, 129 L Ed 2d 304 (1994} LUBA then looks at
whether the remaining findings adequately quantify the benefits to the development or
the impacts of the development on public facilities, and whether those findings suffice to
demonstrate that the city's exactions are "roughly proportional". to those benefits and
impacts. McClure v. City of Springfield, 37 Or LUBA 759 (2000).
45.3 Conditions of Approval - Exactions. The fact that an exaction is required by city
ordinance is irrelevant to whether an exaction imposed pursuant to that ordinance is in
fact roughly proportional to the impacts of development. McClure v. City of Springfield,
37 Or LUBA 759 (2000).
45.3 Conditions of Approval- Exactions. The fact that a portion of the property subject to
,,------dedication for transportation improvements will be used for transportation access whether it
is privately or publicly owned is not relevant under Dolan v. City of Tigard, 512 US 374,
. ] 14 S Ct 2309, 129 L Ed 2d 304 (1994), because that consideration is neither a benefit to the
property owner nor an impact of development on the public infrastruc ture. McClure v. City
of Springfield, 37 Or LUBA 759 (2000).
45.3 Conditions of Approval - Exactions. Benefits to the larger community resulting
from the imposition of exactions, as opposed to specific benefits to the subject property,
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are not appropriate considerations under Dolan v. City of Tigard, 512 US 374, 114 S Ct
2309, 129 L Ed 2d 304 (1994). McClure v. City of Springfield, 37 Or LUBA 759 (2000).
45.3 Conditions of Approval- Exactions. In some cases, the impacts resulting from the
development may re so great~ and the' exactions imposed so small, that it is readily
apparent without additional explanation that the exactions are roughly proportional to the
expected impact. McClure v. City of Springfield, 37 Or LUBA 759 (2000).
45.3 Conditions of Approval - Exactions. The impacts resulting from the approval of
two residential parcels are not so great as to make it self-evident that the imposition of a
20-foot dedication of right-of-way requirement is roughly proportional to the impacts of
the proposed de\elopment. McClure v. City of Springfield, 37 Or LUBA 759 (2000).
45.3 Conditions of Approval- Exactions. Unless a local government makes some effort
to quantifY the benefits accruing to a particular development, those benefits will be of
limited assistance in applying the rough proportionality analysis required by Dolan v.
City of Tigard, 512 US 374,114 S Ct 2309,129 L Ed 2d 304 (1994). McClure v. City of
Springfield, 37 Or LUBA 759 (2000).
45.3 Conditions of Approval - Exactions. If the extent of safety impacts caused by a
proposed partition justifies some or all of the city's exactions, the local government may
impose those additional conditions that are roughly proportional to the safety impacts
caused by the approval. McClure v. City of Springfield, 37 Or LUBA 759 (2000).
45.3 Couditious of Approval - Exactions. To the extent Dolan v. City of Tigard, 512
US 374, 114 S Ct 2309, 129 L Ed 2d 304 (1994) is applicable to a facial takings
challenge to legislative adoption of a local ordinance, petitioner must establish from the
face of the challenged ordinance that no set of circumstances exist under which the
ordinance can be applied in a constitutional manner. Lincoln City Ch. OfComm. v. City
of Lincoln City, 36 Or LUBA 399 (1999).
45.3 Conditions of Approval - Exactions. The requirement in Dolan v. City of Tigard,
~Ilr-- 512 US 374,114 S Ct 2309,129 L Ed 2d 304 (1994) that the local government establish
() " If{}#. t\. \ "'rough proportionality" between a proposed exaction and the impacts of development
'IPi. , JI \X)loes not mean that the local government must assume the burden of producing the .
J 'IV, irf'tl evidence on which the rough proportionality determination is based. Lincoln City Ch. Of
n (~t Comm. v. City of Lincoln City, 36 Or LUBA 399 (1999).
\' 45.3 Conditions of Approval - Exactions. Depending on the facts of the case, a local
government's demonstration of rough proportionality required by Dolan v. City of
Tigard, 512 US 374, 114 S Ct 2309, 129 L Ed 2d 304 (1994) may require up to three
distinct sets of analyses: (I) the extent to which the proposed exaction will benefit the
development; (2) the extent to which the proposed exaction will mitigate the
development's impacts on the public infrastructure; and (3) whether the benefits and
impacts analyzed in (I) and (2), considered together, demonstrate that the proposed
exaction is roughly proportional to the impacts of development. Lincoln City Ch. Of
Comm. v. CilY, of Lincoln City, 36 Or LUBA 399 (1999).
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45.3 Conditions of Approval- Exactious. Even assuming Dolan v. City of Tigard, 512
US 374,114 S Ct 2309,129 LEd 2d 304 (1994) addresses whether the local government
must originate the analysis used to demonstrate rough proportionality between a proposed
exaction and the impacts of development, an ordinance requiring that an applicant smmit
a "rough proportionality report" is not facially unconstitutional, where nothing on the
face of the ordinance requires the local government to adopt or use in whole or part the
conclusions contained therein. Lincoln City Ch. OfComm. v. City of Lincoln City, 36 Or
LUBA 399 (1999).
45.3 Conditions of Approval - Exactions. A condition requiring an applicant for site
plan approval for a fast food restaurant to design street improvements for hundreds of feet
beyond the subject property boundaries does not meet the "rough proportionality" test
established in Dolan v. City of Tigard, 512 US 374, 114 S Ct 2309, 129 L Ed2d 304
(1994). Clarkv. City of Albany,.29 Or LUBA 325 (1995).
45.3 Conditions of Approval- Exactions. Under Dolan v. City of Tigard, 512 US 374,
114 S Ct 2309, 129 L Ed2d 304 (1994) andJC. Reeves Corp. v. Clackamas County, 131"
Or App 615, 887 P2d 360 (1994), findings in support of a condition requiring an
applicant for site plan approval for a fast food restaurant to construct certain street and
frontage improvements must compare traffic and other effects of development to required
improvements. Clark v. City of Albany, 29 Or LUBA 325 (1995).
45.3 Conditions of Approval - Exactions. When an applicant's own site plan for a fast-
food restaurant provides for a nondriving area, the local government's imposition of a
condition requiring the nondriving area be retained is not an exaction. Clark v. City of
Albany, 29 Or LUBA 325 (1995).
45.3 Conditions of Approval- Exactions. A condition requiring an applicant to provide
a plan for satisfying the local government's storm drainage requirements prior to issuance
of a land use permit is not an exaction. Clark v. City of Albany, 29 Or LUBA 325 (1995).
45.3 Conditions of Approval - Exactions. Advisory statements labeled as "conditions"
are not exactions. Clark v. City of Albany, 29 Or LUBA 325 (1995). .
45.3 Couditions of Approval - Exactions. If a local government approves a proposed
partition with conditions requiring exactions, the local government must elEure that the
requirement of Dolan v. City of Tigard, 512 US 374, 114 S Ct 2309, 2319-20, 129
L Ed2d 304 (1994) for "individualized determination[ s] that the required dedication is
related both in nature and extent to the impact of the proposed development" is satisfied.
Neuman v. Benton County, 29 Or LUBA 172 (1995).
45.3 Couditions of Approval - Exactions. Conditions of land use approval requiring
uncompensated dedication of land constitute "exactions." Where a condition of land use
approval imposes an exaction, the lo~al government must 'make an individualized
determination that the exaction is roughly proportional in nature and extent to the impact
of the proposed development. Davis v. City of Bandon, 28 Or LUBA 38 (1994).
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45.3 Conditions of Approval - Exactions. Even if a local code provision requiring that
six percent of the gross area of a proposed subdivision be dedicated for open space is
properly interpreted as a minimum rather than a maximum requirement, a decision
requiring dedication of much more than six percent of the gross area of a proposed
subdivision must be remanded so that the local government may adopt findings
explaining that interpretation and showing the "rough proportionality" requirement of
Do/an v. City of Tigard is satisfied. Davis v. City of Bandon, 28 Or LU~A 38 (1994).
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