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Appealing Land Use Decisions through LUBA

We've written before about the ways certain land use changes within a neighborhood can nuisance homeowners. There, we discussed the importance of the homeowner's right to have a say in what goes on in his or her neighborhood. Unfortunately, the city is not going to prohibit every change that creates a nuisance, but certain avenues do exist for appealing City decisions.

One such avenue is the Land Use Board of Appeals (LUBA). In Oregon, LUBA can uphold or reverse a city's decision to grant certain land use permits, depending on whether the decision is supported by substantial evidence. Unfortunately, proving the absence of substantial evidence can be extremely difficult.

This point was reiterated earlier this month in an Oregon Court of Appeals case regarding a commercial trucking company run out of a person's family home. In Stevens v. City of Island City, A1-55013 (Or. App. Feb. 5, 2014), Island City permitted the trucking company to be run out of a rural residence despite complaints from neighbors that the home was more business than residence.

The neighbors appealed to LUBA. LUBA, however, could only overturn the city's decision if it established no reasonable person could come to the same conclusion as the city, based on all the facts on record. Ultimately, LUBA agreed with the city's decision. LUBA looked to the fact that no signage was posted, that no customers or sales were allowed on the property, and that the time and activities related to the business would be limited. Because of these factors, neither the neighbors nor LUBA were able to establish no reasonable person could come to the same decision as the city's had.

Perhaps the neighbors in that case were too sensitive. But, it's not hard to imagine the frustration that can come when someone sets up a commercial trucking (or similarly disruptive) business next to your home.

If you don't like certain changes you are seeing in your neighborhood, a local real estate attorney can help you direct your concerns in the right place.

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Slinde Nelson Stanford
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