Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. Parks and Recreation Department

Court of Appeals of Oregon

April 3, 2019

Tom BROWN, Petitioner,
v.
PARKS AND RECREATION DEPARTMENT, by and through State Historic Preservation Office, Respondent.

          Argued and Submitted October 30, 2018

          Oregon Parks and Recreation

          Nathan R. Morales argued the cause for petitioner. Also on the opening brief were Perkins Coie LLP and James E. Mountain, Jr., and Harrang Long Gary Rudnick P.C. On the reply brief were Nathan R. Morales, Laura F. Segal, and Perkins Coie LLP, and James E. Mountain, Jr., and Harrang Long Gary Rudnick P.C.

          Jona J. Maukonen, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Brewer, Senior Judge.

         Case Summary:

         In this administrative rule review under ORS 183.400, petitioner contends that information published by the Oregon Parks and Recreation Department's State Historic Preservation Office, describing property owners eligible to concur in or object to a nomination of property for inclusion in the National Register of Historic Places, constitutes a "rule" within the meaning of the Administrative Procedures Act and is invalid because the agency failed to comply with applicable rulemaking procedures. In particular, petitioner asserts that the ownership counting standard is a rule because it amplifies and refines the definition of owner in the governing rule by adding another entity to the definition-trusts. Held: Including trusts as owners for the purpose of voting on [296 Or.App. 887] a nomination for inclusion in the National Register of Historic Places required a properly adopted rule.

         Provision of State Historic Preservation Office's ownership counting standard that designates trusts as eligible owners held invalid.

         [296 Or.App. 888] BREWER, S.J.

         In this rule challenge under ORS 183.400(1), [1]petitioner contends that information published online by the Oregon Parks and Recreation Department, through its State Historic Preservation Office (SHPO), describing property owners eligible to concur in or object to a nomination of property for inclusion in the National Register of Historic Places constitutes a "rule" within the meaning of the Administrative Procedures Act (APA), ORS 183.310 to 183.690, and is invalid because SHPO failed to comply with applicable rulemaking procedures. We conclude that the part of the published information-hereafter referred to as "the ownership counting standard" or "the standard"-that designates trusts as eligible owners is invalid.

         The National Park Service (NPS) administers the National Register Program. 36 CFR § 60.3(h). Nominations submitted by State Historic Preservation Officers, prepared under approved State Historic Preservation Programs, and approved by NPS, are one way that the NPS adds properties to the National Register of Historic Places. 36 CFR § 60.1 (b)(3); see ORS 358.612(5); ORS 358.617. To implement the program, existing federal regulations and SHPO rules establish a procedure by which properties may be added to the National Register. A state SHPO must give "owners of private property an opportunity to concur in or object to a listing." 36 CFR § 60.6(b). It is "the responsibility of [SHPO] to ascertain whether a majority of owners of private property have objected." 36 CFR § 60.6(g). As pertinent here, a federal regulation defines "owner or owners" as

"those individuals, partnerships, corporations or public agencies holding fee simple title to property. Owner or owners does not include individuals, partnerships, corporations or public agencies holding easements or less than fee interests (including leaseholds) of any nature."

36 CFR § 6O.3(k) (emphasis added). SHPO, as part of the Oregon Parks and Recreation Department, adopted by reference the [296 Or.App. 889]1994 version of 36 CFR part 60, which is identical to the current version. OAR 736-050-0220.

         In May 2017, SHPO submitted the nomination of petitioner's neighborhood for historic district designation to NPS. SHPO advised NPS of its "opinion that the proposed Eastmoreland Historic District (District) is eligible for listing in the National Register of Historic Places," but "due to procedural inconsistencies in the tallying of property owners within the District," SHPO could not "provide a reliable list of property owners eligible to object to the proposed listing." SHPO specifically noted that, despite several attempts to determine the total number of owners in the district, it could not decide how to properly count the owners.

         NPS returned the nomination at SHPO's request so that SHPO could continue its effort to make an accurate count of total property owners and total objections. In returning the nomination, NPS advised SHPO that state law governs the determination of property ownership for purposes of an historic district nomination and that SHPO should refer any ownership questions to an authorized state official.

         After the nomination was returned to SHPO, it published the challenged ownership counting standard on its website. The standard, which is entitled "How to count ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.