Chapter 227

 

ATTY. GEN. OPINIONS: Fasano v. Bd. of County Commrs., application to city governing bodies and planning commissions, (1974) Vol 36, p 960

 

      227.030

 

ATTY. GEN. OPINIONS: Housewife as engaged in an occupation, (1975) Vol 37, p 987; four members of city planning commission engaged in retailing, (1979) Vol 40, p 46

 

      227.160 to 227.185

 

NOTES OF DECISIONS

 

      References to application for permits and zone changes do not prevent use of quasi-judicial proceeding in other types of land use decisions. Department of Transportation v. City of Mosier, 161 Or App 252, 984 P2d 351 (1999)

 

LAW REVIEW CITATIONS: 10 WLJ 395 (1974); 68 OLR 1005 (1989)

 

      227.160

 

NOTES OF DECISIONS

 

      Exception from definition of “permit” for decision determining zoning classification for particular use applies to both discretionary and nondiscretionary decisions. Buckman Community Association v. City of Portland, 168 Or App 243, 5 P3d 1203 (2000)

 

      227.170

 

NOTES OF DECISIONS

 

      The city council’s approval of the conditional use permit was invalid for failure to comply with the procedures it was required to articulate prior to the conduct of a process of this sort. Adam v. City of Scappoose, 27 Or App 219, 555 P2d 809 (1976)

 

      227.173

 

NOTES OF DECISIONS

 

      City satisfied requirement of this section that development ordinances set forth reasonably clear standards for discretionary permit applications when, under several ordinances, applicants were required to demonstrate that conditional land use was essential to functioning of residential neighborhood and degree to which use met public need. Lee v. City of Portland, 57 Or App 798, 646 P2d 662 (1982)

 

      Standards under this provision need only be clear enough for applicant to know what applicant must show during application process. Oswego Properties, Inc. v. City of Lake Oswego, 108 Or App 113, 814 P2d 539 (1991)

 

      Cities may identify standards and criteria applicable to particular permits by interpreting general provisions set forth in land use legislation where standards and criteria reasonably follow from general provisions. BCT Partnership v. City of Portland, 130 Or App 271, 881 P2d 176 (1994)

 

      227.175

 

NOTES OF DECISIONS

 

      City council must make findings that proposed subdivision complied with applicable land use regulations, but court will not reverse plat approval where no assertion was made that any specific provision was violated. Golf Holding Co. v. McEachron, 39 Or App 675, 593 P2d 1202 (1979), Sup Ct review denied

 

      Only conformity to comprehensive plan, not specific additional showing of public need or consideration of other available property, is prerequisite to zone change. Neuberger v. City of Portland, 288 Or 155, 603 P2d 771 (1979)

 

      Requirement for de novo hearing upon appeal to LUBA does not prevent local government from imposing prehearing identification and notice of issues requirement. Johns v. City of Lincoln City, 146 Or App 594, 933 P2d 978 (1997)

 

LAW REVIEW CITATIONS: 6 EL 153 (1975)

 

      227.178

 

NOTES OF DECISIONS

 

      Where petitioners’ contention that applicant failed to file new application after city amended ordinance raised only questions of procedure without showing prejudice to petitioners’ substantial rights, there was no basis for reversing granting of application. Sunburst II Homeowners Assn. v. City of West Linn, 101 Or App 458, 790 P2d 1213 (1990), Sup Ct review denied

 

      Governing body cannot avoid mandamus action by issuing application denial after expiration of 120-day period but prior to mandamus hearing. State ex rel Compass Corp. v. City of Lake Oswego, 319 Or 537, 878 P2d 403 (1994)

 

      Attorney fee provision of ORS 34.210 applies to action for writ to compel governing body to approve application. State ex rel Compass Corp. v. City of Lake Oswego, 135 Or App 148, 898 P2d 198 (1995)

 

      Where provisions of state rule become applicable to local jurisdiction due to jurisdiction’s not adopting local legislation, previously filed applications are not subject to provisions. East Lancaster Neighborhood Assoc. v. City of Salem, 139 Or App 333, 911 P2d 1283 (1996)

 

      “Permit” does not include request for annexation. Clark v. City of Albany, 142 Or App 207, 921 P2d 406 (1996)

 

      County interpretation of county ordinance is not entitled to deference in mandamus proceeding. State ex rel Currier v. Clatsop County, 149 Or App 285, 942 P2d 847 (1997); State ex rel Coastal Management, Inc. v. Washington County, 159 Or App 533, 979 P2d 300 (1999)

 

      Application is not subject to 120-day final action deadline upon remand from Land Use Board of Appeals. State ex rel Holland v. City of Cannon Beach, 153 Or App 176, 956 P2d 1039 (1998)

 

      Action for writ to compel issuance of land use approval is deemed commenced on date filed with court. Seida v. City of Lincoln City, 160 Or App 499, 982 P2d 31 (1999), Sup Ct review denied

 

      Once application is deemed complete, action by applicant other than written request for extension have no effect on date by which city must take final action. State ex rel Stewart v. City of Salem, 241 Or App 528, 251 P3d 783 (2011)

 

      227.179

 

NOTES OF DECISIONS

 

      Applicant does not waive right to mandamus action when applicant continues application process after 120-day deadline. State ex rel West Main Townhomes v. City of Medford, 233 Or App 41, 225 P3d 56 (2009), modified 234 Or App 343, 228 P3d 607 (2010)

 

      227.180

 

NOTES OF DECISIONS

 

      Letter from city attorney to members of governing body, sent after hearing was concluded, was properly excluded from city’s record on appeal to LUBA and opponent of city’s decision had no right to rebut or be apprised of letter’s contents. Dickas v. City of Beaverton, 92 Or App 168, 757 P2d 451 (1988)

 

      This section requires that parties to proceeding have greatest possible opportunity to prepare for and present rebuttal in response to evidence included in ex parte communication and city council member’s failure to disclose ex parte communication at first council meeting following communication deprived petitioner of substantive right and required new hearing before council. Horizon Construction, Inc. v. City of Newberg, 114 Or App 249, 835 P2d 523 (1992)

 

      Adequate remedy under this section for ex parte communication is remand that ensures that: 1) interested persons are made aware of substance of ex parte communication; 2) interested persons are given opportunity to prepare and present evidentiary and rhetorical responses to substance of ex parte communication; and 3) deciding body reevaluates original decision and issues appropriate new written decision that takes into account evidence and argument in original record viewed together with evidence and argument presented on remand. Opp v. City of Portland, 171 Or App 417, 16 P3d 520 (2000), Sup Ct review denied

 

LAW REVIEW CITATIONS: 55 OLR 122-140 (1976)

 

      227.210 to 227.300

 

LAW REVIEW CITATIONS: 10 WLJ 362, 385 (1974)

 

      227.215

 

      See also annotations under ORS 227.220, 227.230 and 227.240 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statutes (ORS 227.220, 227.230)

 

      Once a planned unit development is approved, the developer is bound by it unless changes are approved pursuant to the applicable ordinance. Frankland v. City of Lake Oswego, 267 Or 452, 517 P2d 1042 (1973)

 

      A properly enacted comprehensive plan, although denominated a “resolution,” controls zoning decisions in a city. Baker v. City of Milwaukie, 271 Or 500, 533 P2d 772 (1975)

 

      A comprehensive plan is the controlling land use planning instrument for a city; upon its passage, the city assumes responsibility to effectuate the plan and conform zoning ordinances, including prior existing zoning ordinances, to it. Baker v. City of Milwaukie, 271 Or 500, 533 P2d 772 (1975)

 

      In determining whether a municipal action is an ordinance rather than a resolution, it is necessary to look beyond the title to determine whether it is legislative and permanent rather than administrative and temporary. Baker v. City of Milwaukie, 271 Or 500, 533 P2d 772 (1975)

 

      The party seeking a zoning change did not show that the proposed change was required by public need. So. Cen. Assn. of Neighbors v. Lindsey, 21 Or App 578, 535 P2d 1381 (1975)

 

      The city council was authorized to adopt a change in its comprehensive plan. Tierney v. Duris, PayLess Prop. Corp., 21 Or App 613, 536 P2d 435 (1975)

 

      The city council could adopt supplemental findings of facts supporting its earlier plan-change decision. Tierney v. Duris, PayLess Prop. Corp., 21 Or App 613, 536 P2d 435 (1975)

 

      The power to regulate, restrict and segregate different classes of businesses in a city by ordinance is reserved to the city council. Link v. City of Coos Bay, 23 Or App 648, 543 P2d 1082 (1975)

 

ATTY. GEN. OPINIONS

 

In general

      City granting conditional zone change, (1979) Vol 39, p 467

 

      227.220

 

NOTE: Repealed September 13, 1975; ORS 227.215 enacted in lieu

 

      See annotations under ORS 227.215.

 

      227.230

 

NOTE: Repealed September 13, 1975; ORS 227.215 enacted in lieu

 

      See annotations under ORS 227.215.