Agenda - Planning Commission - 05/07/2015

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Zoning Bulletin April 10, 2015 I Volume 9 1 Issue 7 ORS 197.772(3) provides as follows: "A local government shall allow a property owner to remove from the property a historic property designa- tion that was imposed on the property by the local government." Lake Oswego Preservation Society ("LOPS") appealed the City Council's determination to Oregon's Land Use Board of Appeals ("LUBA"). LUBA concluded that the City had erroneously interpreted ORS 197.772(3). LUBA concluded that the phrase "a property owner" did not include "persons who become owners of the property after it is designated." Thus, because Hanson was not the property owner at the time of the Property's historic designation, LUBA reversed the City's de- cision applying ORS 197.772(3) to Hanson's Property. Hanson appealed. On appeal, Hanson contended that LUBA lacked ju- risdiction to hear LOPS' appeal because the City's decision under ORS 197.772(3) was not a "land use decision." Hanson contended that the stat- ute only required the City to determine whether a historic designation was imposed on a property, a decision which did not concern planning goals or land use regulations. Hanson also contended that LUBA's interpreta- tion of the statute was erroneous; she argued that "a property owner" ap- plied to all owners of property with historic .designation, including those property owners that took ownership subsequent to the designation. DECISION: Judgment of LUBA affirmed in part and reversed in part. The Court of Appeals of Oregon first held that the City's decision to remove the historic designation under ORS 197.772(3) was a land use de- cision, subject to LUBA jurisdiction. In rejecting Hanson's argument that LUBA lacked jurisdiction, the court noted that Hanson failed to account for the City's actions that occurred as a consequence of its conclusion that ORS 197.772(3) applied to Hanson's Property. The City "did more than just determine the applicability of state law," found the court. The City then removed Hanson's Property from its Landmark Designation List—a land use regulation. Amending that list placed the City's actions "squarely within the definition of 'land use decision,' " concluded the court. The court also held that LUBA's interpretation of ORS 197.772(3) was correct. The court found that the text and context of ORS 197.772(3) did not "shed much light" on the proper interpretation of "a property owner." Thus the court looked to the legislative history of the statute. Analyzing the legislative history of the statute, the court concluded that the legislature, in adopting the statute, "intended to allow any property owner that had a local historic designation forced on their property to remove that designation." The court found that the legislature was "focused on correcting imposition of unwanted designations, and not on the identity of the property owner that might be now stuck with that designation." The court found no legislative text narrowing the definition of "a property owner." Thus, the court concluded that Hanson, as a successor property owner, was entitled to have the historic property designation removed under ORS 197.772(3). © 2015 Thomson Reuters 7