Planning Commission Training on Oregon Land Use Law - February 5, 2025

The West Linn Planning Commission, joined by members of the Historic Review Board and City Council, held a land use law training session on February 5, 2025, from 6:00 PM to approximately 7:56 PM. The training was conducted in a hybrid format (in-person and via Webex) and was presented by Josh Soper, an attorney with Beery Elsner & Hammond who specializes in municipal land use law. The session covered the history of Oregon land use, distinctions between legislative and quasi-judicial decisions, bias, ex parte contacts, conflicts of interest, public meeting requirements, criteria and findings, conditions of approval, the 120-day rule, clear and objective standards, constitutional limits on exactions, and recent legislative changes.

Discussion Items

• History and Purpose of Oregon Land Use: Soper explained that Oregon's land use system originated with Senate Bill 100 in 1973 to protect farm and forest lands and prevent sprawl. He outlined the roles of state-level entities (DLCD, LCDC, LUBA) and local comprehensive plans and development codes.
• Legislative vs. Quasi-Judicial Decisions: Using the Strawberry Hill Four-Wheelers case, Soper distinguished legislative decisions (broad policy, no bias/ex parte limits) from quasi-judicial decisions (based on pre-existing criteria, requires neutral decision-making, and must be based solely on the record).
• Bias: Soper provided case examples (City of Depot Bay, Cottage Grove, Jacksonville, etc.) illustrating when bias is found—e.g., prejudging, conducting independent research, or introducing outside evidence. Commissioners asked about using professional experience; Soper advised that asking questions informed by experience is acceptable but acting as a second expert witness is not.
• Ex Parte Contacts: Any communication outside the official record, including site visits, must be disclosed along with its substance. Soper recommended over-disclosure and careful note-taking during site visits. Communications with staff are exempt. Pre- or post-application contacts may be problematic if the matter returns.
• Conflicts of Interest: Oregon ethics law defines conflicts only in financial terms. Actual financial conflicts require recusal; potential conflicts allow participation after disclosure. Soper strongly advised leaving the room entirely during deliberations. Personal liability can result from violations; the Oregon Government Ethics Commission should be consulted.
• Public Meetings Law: All meetings must be publicly noticed and open. Serial meetings (via email, intermediaries) are prohibited. Staff uses blind copy to avoid accidental serial communication.
• Hearing Requirements: Quasi-judicial hearings require notice, identification of criteria, and a “raise it or waive it” rule. The applicant has seven days for final written argument but typically waives it. Disruptions should be handled with warnings and recesses.
• Criteria and Findings: Decisions must be supported by substantial evidence in the record. Findings must explain how evidence satisfies criteria. Conflicting evidence must be resolved. Staff typically drafts findings.
• Conditions of Approval: Must relate to approval criteria. A 2024 state law requires that housing applicants be given an opportunity to propose conditions before denial. Conditions volunteered by applicants are generally binding if not challenged.
• 120-Day Rule: A final local decision must be made within 120 days of the application being deemed complete. Failure triggers a refund of fees and potential writ of mandamus. Extensions must be in writing.
• Clear and Objective Standards: Housing regulations must be clear and objective; unclear standards cannot be applied. Optional discretionary paths (e.g., planned unit developments) remain available.
• Constitutional Issues – Takings and Exactions: Conditions requiring property dedication or improvements must have a nexus and be roughly proportional to the development’s impact (Nollan/Dolan standards).
• Recent Legislation (SB 1537): Effective January 1, 2025, mandatory adjustments allow up to 10 variances from specified standards for housing applications (e.g., setbacks, lot sizes, facade materials). The definition of limited land use decisions was expanded to include replats, property line adjustments, and non-conforming use alterations, which can be processed without a hearing.

Key Outcomes

• No decisions, votes, or formal actions were taken. The meeting was entirely an educational training.
• Staff indicated they would distribute summary notes and follow up on any outstanding questions.