Lake Oswego Preservation Society v. City of Lake Oswego

344 P.3d 26, 268 Or. App. 811, 2015 Ore. App. LEXIS 110
Court of Appeals of Oregon·Decided February 4, 2015·No. 2014009; A157619·Published·Cited by 3 cases

Opinion

EGAN, J.

Marjorie Hanson, Trustee for the Wilmot Trust (Hanson), is the current owner of property subject to a historic designation that was placed on that property by the City of Lake Oswego in 1990, approximately five years before the enactment of ORS 197.772 — the statute at issue in this case. Shortly after the designation, Richard Wilmot, one of the original owners of the property,1 attempted to have the historic designation removed. The city rejected that request. Hanson made a second request for removal of the designation in 2013. The city’s Historic Resources Advisory Board rejected Hanson’s request, and the city council held a hearing on the issue. At Hanson’s behest, the city considered her request “solely under ORS 197.772(3)”2 and not under a land use application.3 Respondent Lake Oswego Preservation Society (LOPS)4 appeared through counsel at the hearing to oppose removal of the historic designation. The city concluded that, “as the local government that imposed the historic designation,” it was “mandated by state law to remove the historic designation” and that Hanson was “entitled per ORS 197.772(3) to require the [c]ity to remove the historic designation from the subject property.”

LOPS filed a timely appeal with the Land Use Board of Appeals (LUBA). LUBA concluded that the city had erroneously interpreted ORS 197.772(3), and reversed and remanded the city’s decision to remove the historic designation. Hanson now seeks judicial review of LUBA’s final order, raising two assignments of error. Hanson contends that LUBA lacked jurisdiction to hear the appeal and that LUBA’s conclusion on the merits was incorrect. We reject [814] Hanson’s contention that LUBA lacked jurisdiction but conclude that LUBA’s interpretation of ORS 197.772(3) was erroneous. LOPS also filed a cross-petition, which we summarily reject.5 Accordingly, we reverse LUBA’s order.

On review, Hanson first argues that the city’s decision under ORS 197.772(3) is not a “land use decision,”6 over which LUBA has exclusive jurisdiction, ORS 197.825(1), because that statute only requires the city to determine whether a historic designation was imposed on a property— a determination that does not concern planning goals, comprehensive plan provisions, or land use regulations. To support that argument, Hanson cites Leupold & Stevens, Inc. v. City of Beaverton, 226 Or App 374, 203 P3d 309 (2009). For the following reasons, we reject that argument.7

In Leupold, the city adopted an ordinance annexing Leupold’s property into the city In the midst of other legal actions before LUBA and this court challenging the adoption of that ordinance, Leupold sent a letter to the city “demanding that it rescind the * * * ordinance” in light of a newly enacted state law that “restrict [ed] the city’s ability to annex certain industrial properties” without the property owner’s consent. Id. at 376-77. The city did not take any action on the demand, in part, because the Court of Appeals [815] and LUBA cases were pending.8 Leupold then filed an action in circuit court seeking declaratory and injunctive relief on the question whether the city’s ordinance was valid in light of the adoption of the new state law. Id. at 377-78. The circuit court dismissed the action, concluding that it lacked subject matter jurisdiction to determine whether the ordinance was valid, in light of the new state law, as that would be a “land use decision.” Id. at 377.

Leupold appealed the dismissal and we reversed. After assuming that the city’s decision not to act on Leupold’s demand was a “decision,” we concluded that it was not a land use decision, noting that a “determination by a local government relating only to the applicability of [the state legislation] would not, on its own, be a land use decision.” Id. at 379-80. We further noted that, because the state legislation did not “involve application of land use planning goals or any comprehensive plan provision,” a decision that does “nothing more than determine the applicability of the [state legislation] would not meet the statutory definition of a land use decision.’” Id. at 380.

Relying on that language, Hanson asserts that the city’s decision to remove the historic designation under ORS 197.772(3) is not a land use decision. In Hanson’s view, the city has simply made a “decision determining the applicability of state law,” and, like in Leupold, that decision does not involve the application of any land use planning goals or comprehensive plan provision. Thus, Hanson argues that LUBA did not have jurisdiction because the city did not make a land use decision as defined in ORS 197.015.

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Lake Oswego Preservation Society v. City of Lake Oswego, 344 P.3d 26, 268 Or. App. 811, 2015 Ore. App. LEXIS 110 (Or. Ct. App. 2015).

344 P.3d 26 (Lake Oswego Preservation Society v. City of Lake Oswego) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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