344 P.3d 26
Or. Ct. App.2015Background
- Property in Lake Oswego received a local historic designation in 1990; Richard Wilmot (an original owner) objected at the time. Marjorie Hanson is the successor trustee and current owner.
- ORS 197.772 was enacted in 1995; subsection (1) bars imposing designations without owner consent and subsection (3) requires a local government to allow a property owner to remove a historic designation "imposed on the property by the local government."
- Hanson sought removal of the designation in 2013 under ORS 197.772(3); the city concluded it was required to remove the designation and amended its Landmark Designation List to do so.
- Lake Oswego Preservation Society (LOPS) appealed to LUBA; LUBA reversed, holding ORS 197.772(3) did not allow a later purchaser (Hanson) to remove a prior-imposed designation.
- Hanson sought judicial review; the Oregon Court of Appeals reviewed (1) whether LUBA had jurisdiction and (2) LUBA’s statutory interpretation of who qualifies as "a property owner" under ORS 197.772(3).
Issues
| Issue | Plaintiff's Argument (Hanson) | Defendant's Argument (LOPS/City) | Held |
|---|---|---|---|
| Whether LUBA had jurisdiction over the city’s removal decision | City’s ORS 197.772(3) action merely determined applicability of state law and was not a "land use decision," so LUBA lacks exclusive jurisdiction | City amended its Landmark Designation List (a land use regulation), so the action was a "land use decision" subject to LUBA | LUBA had jurisdiction because the city amended a local land use regulation (the Landmark Designation List) |
| Whether ORS 197.772(3) permits a successor owner to remove a historic designation that was imposed before enactment | "A property owner" should be read to mean only the owner at time of designation; subsection (3) doesn’t apply to subsequent owners | The statute’s text, context, and legislative history show subsection (3) targets designations "imposed" by local governments and allows any current owner of such a property to remove the designation, including successors | The court reversed LUBA: subsection (3) applies to successor owners where the designation was "imposed" by the local government; Hanson (successor) may remove the pre-enactment imposed designation |
Key Cases Cited
- Leupold & Stevens, Inc. v. City of Beaverton, 226 Or. App. 374, 203 P.3d 309 (2009) (local determination solely about applicability of state statute may not be a "land use decision")
- PGE v. Bureau of Labor & Indus., 317 Or. 606, 859 P.2d 1143 (1993) (framework for statutory interpretation to review agency action)
- State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009) (modifications to PGE statutory interpretation framework)
- Greenfield v. Multnomah County, 259 Or. App. 687, 317 P.3d 274 (2013) (standards for reviewing LUBA statutory interpretations)