Posted by: Patricia Salkin | January 14, 2019

OR Appeals Court Reverses Decision Imposing Conditions on City’s Approval of Landowner’s Application to Divide His Property

This post was authored by Matthew Loeser, Esq.

Petitioner Hill applied to the city to divide his property into three separate parcels. The City of Portland approved petitioner’s application, but imposed several conditions of approval. Petitioner appealed the decision to a city hearings officer, who determined that a condition requiring petitioner to dedicate a two-to-seven foot wide right-of-way along the site’s frontage along SE 122nd Avenue to accommodate future street improvements was not an unconstitutional exaction of property in violation of the Fifth and Fourteenth Amendments. The Land Use Board of Appeals (“LUBA”) affirmed this decision.

The record reflected that in determining that the city had demonstrated interests that would permit it to deny petitioner’s permit, the hearings officer failed to examine how the impacts of petitioner’s proposal substantially impeded the governmental interest or interests embodied in the city’s right-of-way design standards. The court found that this assessment was required under Nollan in order to determine whether a government had demonstrated a valid basis for denying a requested permit for purposes of determining whether an exaction of property was constitutional. Accordingly, the court held the hearings officer legally erred in his application of the Nollan/Dolan framework and LUBA erred in concluding otherwise. As such, the order of the LUBA to sustain the condition requiring petitioner to dedicate a right-of-way along SE 122nd Drive was reversed.

The court next reviewed the LUBA’s decision to affirm the city’s requirement that petitioner sign waivers of remonstrance. Here, the record reflected that the hearings officer did not find that there was a need for a local improvement district or that petitioner’s project would contribute to the need for a local improvement district and be benefited by one. Furthermore, the court noted that while LUBA may have been correct that the record contained substantial evidence to support those findings if the hearings officer had made them, that was not the analysis required. Instead, the hearings officer was required to find that there was a need for a local improvement district and that petitioner’s development would both contribute to the need for those improvements and be benefited by them. Accordingly, the court reversed and remanded the case to the LUBA.

Hill v City of Portland, 293 Or. App. 283 (8/8/2018)

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