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Lake Oswego Pres. Soc'y v. City of Lake Oswego

Court of Appeals of Oregon

February 4, 2015

LAKE OSWEGO PRESERVATION SOCIETY, Marylou Colver, and Erin O'rurke-Meadors, Respondents, Cross-Petitioners,
v.
CITY OF LAKE OSWEGO, Respondent, Cross-Respondent, and Marjorie HANSON, trustee for the Mary Cadwell Wilmot Trust, Petitioner, Cross-Respondent

Argued and Submitted November 7, 2014.

Land Use Board of Appeals. 2014009.

Christopher P. Koback argued the cause for petitioner-cross-respondent. With him on the briefs was Hathaway Koback Connors LLP.

Daniel Kearns argued the cause for respondents-cross-petitioners Lake Oswego Preservation Society, Marylou Colver, and Erin O'Rurke-Meadors. With him on the brief was Reeve Kearns, PC.

Evan P. Boone argued the cause and filed the brief for respondent-cross-respondent City of Lake Oswego.

Before Armstrong, Presiding Judge, and Egan, Judge, and Wollheim, Senior Judge.

OPINION

Page 27

[268 Or.App. 813] EGAN, J.

Marjorie Hanson, Trustee for the Wilmot Trust (Hanson), is the current owner of property subject to a historic designation that was placed on that property by the City of Lake Oswego in 1990, approximately five years before the enactment of ORS 197.772--the statute at issue in this case. Shortly after the designation, Richard Wilmot, one of

Page 28

the original owners of the property,[1] attempted to have the historic designation removed. The city rejected that request. Hanson made a second request for removal of the designation in 2013. The city's Historic Resources Advisory Board rejected Hanson's request, and the city council held a hearing on the issue. At Hanson's behest, the city considered her request " solely under ORS 197.772(3)" [2] and not under a land use application.[3] Respondent Lake Oswego Preservation Society (LOPS)[4] appeared through counsel at the hearing to oppose removal of the historic designation. The city concluded that, " as the local government that imposed the historic designation," it was " mandated by state law to remove the historic designation" and that Hanson was " entitled per ORS 197.772(3) to require the [c]ity to remove the historic designation from the subject property."

LOPS filed a timely appeal with the Land Use Board of Appeals (LUBA). LUBA concluded that the city had erroneously interpreted ORS 197.772(3), and reversed and remanded the city's decision to remove the historic designation. Hanson now seeks judicial review of LUBA's final order, raising two assignments of error. Hanson contends that LUBA lacked jurisdiction to hear the appeal and that LUBA's conclusion on the merits was incorrect. We reject [268 Or.App. 814] Hanson's contention that LUBA lacked jurisdiction but conclude that LUBA's interpretation of ORS 197.772(3) was erroneous. LOPS also filed a cross-petition, which we summarily reject.[5] Accordingly, we reverse LUBA's order.

On review, Hanson first argues that the city's decision under ORS 197.772(3) is not a " land use decision," [6] over which LUBA has exclusive jurisdiction, ORS 197.825(1), because that statute only requires the city to determine whether a historic designation was imposed on a property--a determination that does not concern planning goals, comprehensive plan provisions, or land use regulations. To support that argument, Hanson cites Leupold & Stevens, Inc. v. City of Beaverton, 226 Or.App. 374, 203 P.3d 309 (2009). For the following reasons, we reject that argument.[7]

In Leupold, the city adopted an ordinance annexing Leupold's property into the city. In the midst of other legal actions before LUBA and this court challenging the adoption of that ordinance, Leupold sent a letter to the city " demanding that it rescind the * * * ordinance" in light of a newly enacted state law that " restrict[ed] ...


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