Definitions for ORS chapters 195, 196, 197 and ORS 197A.300 to 197A.325
Source:
Section 197.015 — Definitions for ORS chapters 195, 196, 197 and ORS 197A.300 to 197A.325, https://www.oregonlegislature.gov/bills_laws/ors/ors197.html.
Notes of Decisions
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); distinguished in Green v. Hayward, 275 Or 693, 552 P2d 815 (1976)
This section indicates legislative intent that comprehensive plans contain summaries, couched in broad terms, of land use policies. Commonwealth Properties v. Washington County, 35 Or App 387, 582 P2d 1384 (1978); Neuberger v. City of Portland, 288 Or 155, 603 P2d 771 (1979)
As policies relating to sewers are within category of policies which county is empowered to include within its comprehensive plan, local sewer district plan is not comprehensive plan within meaning of this section and sanitary district’s policy-making role is subordinate to county’s, county did not exceed its authority in not conforming its comprehensive plan to that of sanitary district. Jackson County v. Bear Creek Authority, 53 Or App 823, 632 P2d 1349 (1981), aff’d 293 Or 121, 645 P2d 532 (1982)
School district’s decision to close school was not “land use decision” within meaning of this section. Westside Neighborhood v. School Dist. 4J, 58 Or App 154, 647 P2d 962 (1982), Sup Ct review denied
Circuit court lacked jurisdiction over declaratory judgment action to review local government’s decision that defendants had vested right to continue nonconforming use because the decision was a “land use decision” under this section, reviewable exclusively by Land Use Board of Appeals; overruling to extent of inconsistency, Eagle Creek Rock Products v. Clackamas County, 27 Or App 371, 556 P2d 150 (1976), 1000 Friends of Oregon v. Clackamas County Commission, 29 Or App 617, 564 P2d 1080 (1977) and Eklund v. Clackamas County, 36 Or App 73, 583 P2d 567 (1978). Forman v. Clatsop County, 63 Or App 617, 665 P2d 365 (1983), aff’d297 Or 129, 681 P2d 786 (1984)
City council resolution determining that petitioner had no vested right to continue to operate elementary school on church premises was land use decision under this section. Medford Assembly of God v. City of Medford, 64 Or App 815, 669 P2d 1161 (1983), aff’d 297 Or 138, 681 P2d 790 (1984)
Denial of building permit may be land use decision under this section, which LUBA has exclusive jurisdiction to review, if it involves application of goal, comprehensive plan or zoning ordinance or may not be land use decision if it is ministerial decision or involves application of subdivision law. Bell v. Klamath County, 77 Or App 131, 711 P2d 209 (1985)
Decision authorizing incorporation election is final decision for purposes of “land use decision” definition. 1000 Friends of Oregon v. Wasco County Court, 299 Or 344, 703 P2d 207 (1985)
Local road vacation decisions are not automatically “land use decisions”; if decision will have significant impact on present or future land uses it is land use decision and LUBA has jurisdiction. Billington v. Polk County, 299 Or 471, 703 P2d 232 (1985)
Provision defining limits on parking spaces is “guideline” in city’s comprehensive plan and application is therefore not mandatory. Downtown Comm. Assoc. v. City of Portland, 80 Or App 336, 722 P2d 1258 (1986), Sup Ct review denied
Because county’s ordinance did not contain “clear and objective standards” for determining whether farm dwelling for which building permit was sought was one “customarily provided in conjunction with farm use,” as required by ordinance, approval of permit was not ministerial decision and was not removed from LUBA’s review jurisdiction by this section. Doughton v. Douglas County, 82 Or App 444, 728 P2d 887 (1986), Sup Ct review denied
LUBA properly dismissed appeal of land use decision because it was not “final” and did not come within “significant impact” test devised by Supreme Court as alternative basis for jurisdiction. Hemstreet v. Seaside Improvement Commission, 93 Or App 73, 761 P2d 533 (1988)
Where Metro’s recommendation for freeway corridor in its Regional Transportation Plan was contingent on subsequent decisions aimed at determining or achieving compliance with statewide land use planning goals, it was not final appealable land use decision. Sensible Transportation v. Metro Service Dist., 100 Or App 564, 787 P2d 498 (1990), Sup Ct review denied
LUBA erred in granting city’s motion to dismiss appeal based on lack of jurisdiction without factual determination as to whether city’s approval of subdivision was “consistent with land use standards.” Southwood Homeowners v. City Council of Philomath, 106 Or App 21, 806 P2d 162 (1991)
Under this statute and ORS 197.825, circuit court authority ends and exclusive land use decisional process begins where granting or denial of permit involves exercise of judgment or interpretation of ordinance, rather than mere ministerial application of ordinance that requires no interpretation or judgment. Campbell v. Bd. of County Commissioners, 107 Or App 611, 813 P2d 1074 (1991)
Where city, which was asked by petitioners for interpretation of its previous decision approving petitioners’ applications for preliminary and final development plan approval and conditional use permit, took no action on request except to discuss it and memorialize consensus opinion in administrator’s letter to petitioners, there was no land use decision subject to review. Owen Development Group, Inc. v. City of Gearhart, 111 Or App 476, 826 P2d 1016 (1992)
Where recommendation effectively amends or is contrary to recommending body’s own plan and can be carried out without further action by recommending body, recommendation is final land use decision. Central Eastside Industrial Council v. City of Portland, 128 Or App 148, 875 P2d 482 (1994)
In determining whether recommendation effectively amends or is contrary to recommending body’s own plan, applicability of plan’s general policy provisions is to be considered. Central Eastside Industrial Council v. City of Portland, 137 Or App 554, 905 P2d 265 (1995)
Where determination by local government was appealed to local body lacking jurisdiction to review, status of local government determination as final land use decision was not altered by appeal to local body. Franklin v. Deschutes County, 139 Or App 1, 911 P2d 339 (1996)
To be excluded from definition of “land use decision,” action in response to “writ of mandamus” must be in response to peremptory writ, not alternative writ. Murphy Citizens Advisory Committee v. Josephine County, 325 Or 101, 934 P2d 415 (1997)
Annexation decision is “land use decision.” Cape v. City of Beaverton, 187 Or App 463, 68 P3d 261 (2003)
Exemption from land use regulation for gathering “not anticipated to continue for more than 120 hours in any three-month period” allows only one gathering within period. Landsem Farms, LP v. Marion County, 190 Or App 120, 78 P3d 103 (2003)
Surveyor’s checking of subdivision or partition plat under ORS 92.100 for compliance with state laws and local ordinances or resolutions is limited land use decision. Hammer v. Clackamas County, 190 Or App 473, 79 P3d 394 (2003), Sup Ct review denied
Definition of “comprehensive plan” does not prohibit regional framework plan from performing some of same functions. City of Sandy v. Metro, 200 Or App 481, 115 P3d 960 (2005)
Local government “has already made a land use decision authorizing a use or activity that encompasses” proposed state agency action if proposed state agency action is based on past land use decision that authorized particular use or activity and if that use or activity brings within or includes proposed state agency action. McPhillips Farm, Inc. v. Yamhill County, 256 Or App 402, 300 P3d 299 (2013)
County’s determination not to enforce road maintenance requirements was not land use decision as it was not required to interpret or engage in exercise of policy or legal judgement as to county’s land use ordinances. Smith v. Dep’t of Land Conservation & Dev., 295 Or App 44, 433 P3d 431 (2018), Sup Ct review denied
Attorney General Opinions
Educational system policy statements as appropriate elements of county comprehensive plans, (1978) Vol 38, p 1713; consideration of availability of public school facilities in determining whether to approve subdivision, (1978) Vol 38, p 1956; effect of subdivision approval on school district, (1979) Vol 39, p 734
Law Review Citations
18 WLR 60 (1982); 19 EL 63 (1988); 68 OLR 984 (1989); 93 OLR 455 (2014)
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