Navigating Local Land Use Procedures
By Real Estate and Land Use Practice Group
SAALFELD GRIGGS PC
Generally, newly proposed development on property, even if “permitted” within the applicable zone, requires the property owner or developer to apply to the city or county for approval of the development. Despite procedural rules prescribed by Oregon law, many property owners find the local land use application process to be extremely and unnecessarily frustrating. The local land use process is governed by subjective approval criteria, relatively low evidentiary standards, and locally elected officials (the constituents of whom are often the opponents to the proposed development). Under these circumstances, the local government can generally justify any denial of an application.
Despite such a frustrating process, the desired result can be achieved with patience, professional representation, and experts to provide evidence demonstrating compliance with the local code. An applicant should at least become familiar with basic strategies and principles of local proceedings. To that end, this article provides some practical tips for navigating the local land use process.
BE COMPLETE & REALISTIC. Significant delays in a project can be avoided by including all the proper information in an application upon submission – even if it seems unnecessary. With some exceptions, including comprehensive plan amendments, Oregon law imposes time restraints on local government to process land use applications: 120 days for cities and 150 days for counties. However, the time limit does not begin until the application is “complete.” Accordingly, developers should become familiar with the local government’s requirements for information to be included with the application.
As a practical matter, property owners and developers should not anticipate that obtaining development approval will take merely 120 or 150 days. Negotiating the applicant’s costs and obligations toward public infrastructure with local government (e.g., streets, water, and sewer), addressing opponents’ questions and concerns, and possibly defending the approval from an appeal, can each significantly increase the time needed to complete the application process.
TEAM UP. In cases involving opposition or disagreement with local government staff, applicants should assemble early (i.e., during preparation of the application) a team of experts to address the anticipated areas of conflict. Generally, the issues of greatest contention are traffic, public utilities infrastructure, and environmental concerns. Applicants can assume they will need at least a civil engineer, if not a traffic engineer as well. Surveyors, environmental and wetland consultants, as well as flood experts may also be needed.
REACH OUT. Public outreach, even prior to submission of an application, is important in addressing early the concerns of neighbors and other special interest groups. Doing so can even avert some opposition altogether. Such outreach and maintained open communication can also bear on the credibility of an applicant since county boards and city councils are increasingly emphasizing public involvement.
PERSUADE AND PRESERVE. Local government codes contain criteria that must be satisfied to approve any given land use application. It is the applicant’s burden to persuade the local decision-maker that those criteria are met. However, particularly in cases where there is opposition, it is important to remember that the objective is not only to persuade the local decision-maker to approve the application, but also to preserve a record of the local proceedings that includes all the information needed to defend the decision (assuming approval) if appealed to the State’s Land Use Board of Appeals (“LUBA”).
Land use decisions may be appealed to LUBA by individuals or organizations that participated in the local proceedings, regardless of the interests or location of the participant. LUBA reviews the decision based solely on the evidence and arguments that were presented during the local proceedings. Accordingly, applicants must ensure that the local record contains all evidence that may be needed to substantiate the decision during LUBA’s scrutiny. As a general matter, LUBA will be reviewing the decision to confirm that every applicable criterion and local-code section have been addressed by adequate written findings in the local government’s final decision, that such findings are supported by substantial evidence, that the local proceedings conform to applicable procedural requirements, and that the decision does not violate Oregon law.
REVIEW THE NOTICE. Oregon law imposes the burden on local governments to notify property owners within a certain radius of the proposed development regarding the proposal and any public hearings to discuss the proposal. Applicants should pay close attention to the notice process and independently verify that the list of notice recipients satisfies the local code requirements. A local government’s failure to notify a particular property owner leaves the decision subject to appeal by that owner perhaps for a period long after the application is approved. This could potentially halt a project in the middle of its construction.
KNOW WHEN TO CONTINUE. Applicants may be surprised by the number and preparedness of opponents who appear and testify at a public hearing regarding the development. If not addressed, opponents’ evidence and arguments can either dissuade the decision-maker or cause remand from LUBA. Often the applicant’s rebuttal necessitates expert testimony and analysis unavailable at the time of the hearing. Applicants must, therefore, know their rights to either continue the hearing to a future date or have the record left open for the submission of additional written evidence. The general rule is that a local government must grant any participant’s request of a hearing or record continuance at the first evidentiary hearing. Continuances of any subsequent hearings are granted solely at the discretion of the decision-maker. However, unless the applicant has requested the hearing or record continuance, the statutory time limits (120 or 150 days) still apply.
PARTICIPATE IN FINDINGS. The findings adopted in support of local land use decisions consist generally of reports prepared by local government staff. These reports are usually insufficient to withstand LUBA’s scrutiny on appeal. Because findings are the primary focus of LUBA appeals, in cases where there is any likelihood of such appeal, applicants should request to participate in the drafting of findings to be adopted by the local government in support of an approval.
DON’T LET YOUR APPROVAL EXPIRE. Most local land use approvals expire after a certain period of time. Approvals in most jurisdictions are valid for periods ranging from one to three years, with opportunities to extend in some circumstances. Remembering the approval’s expiration date is particularly important in slower economic times when it may take more time to obtain financing or buyers for the development.
GET HELP. Retaining professionals familiar with the procedural and substantive requirements of local governments can avoid significant pitfalls and frustration. Whatever your proposal, we recommend you contact a member of our team of land use attorneys to guide you through the application process and obtain your desired result.