Land Use Board of Appeals Denial Reversal Marks Major Win for Silverton Developer

By: Alan M. Sorem, Real Estate & Land Use Attorney

Alan Sorem and members of the land use practice group at Saalfeld Griggs recently celebrated a major victory on behalf of our client, Gene Oster, who successfully appealed a denial of his subdivision application by the City of Silverton.  The Land Use Board of Appeals (LUBA) reversed the City’s initial denial.  LUBA ordered the City to approve the subdivision, and further granted Mr. Oster’s petition for attorneys’ fees and costs.

Mr. Oster has been involved in Silverton real estate for over 20 years.  He and his partners purchased a parcel and proposed to develop a 40-lot subdivision on North James Street in Silverton.  The subdivision land use application is a “limited land use decision” that requires the City to specifically identify the applicable criteria.  Mr. Oster’s application was also an application to provide needed housing.  Needed housing applications must be reviewed only according to clear and objective standards that cannot have the effect of discouraging development of needed housing through unreasonable cost or delay.

LUBA’s reversal was necessary because the City of Silverton denied the subdivision application based on policies not properly codified in the City’s code.  The dispute between the City and Mr. Oster arose when                 Mr. Oster rejected a demand by the City to spend over $2 million to improve surrounding intersections that were already failing.  Mr. Oster appealed the City’s decision to LUBA, arguing that the City did not apply clear and objective standards that are required in applications for needed housing, that the City code did not properly identify the review criteria as required in limited land use decisions, and finally that the City’s proposed requirement was an unconstitutional exaction under Dolan v. City of Tigard, 512 US 734 (1994) and Koontz v. St. Johns River Water Mgmt. Dist., 570 US 595 (2013).

Ultimately, LUBA agreed that the City did not properly identify and incorporate the review criteria it was relying on to require the intersection improvements.  LUBA reversed the City’s decision and awarded Mr. Oster his attorney fees, which is a rare award against a local government.  Most successful appeals are remanded back to the jurisdiction for reconsideration.  However, in this case, because the only reason for the City’s denial was improper, LUBA reversed the decision and required the City to approve the application.

The Statesman Journal recently published a profile on Mr. Oster and his appeal, which can be found at https://www.statesmanjournal.com/story/news/local/silverton/2019/06/12/land-use-board-of-appeals-decision-benefits-silverton-property-developer/1359671001/ .

The LUBA decision can be found at https://www.oregon.gov/LUBA/docs/Opinions/2019/05-19/18103.pdf

If you are involved in a land use project that involves the possible exaction of unreasonable conditions of approval, please contact the attorneys at Saalfeld Griggs.

Alan Sorem is a partner in the Real Estate & Land Use practice group and a member of the Construction Industry Group. The information in this article is not intended to provide legal advice. For professional consultation, please contact Alan Sorem at Saalfeld Griggs PC.  503.399.1070.  [email protected]  © 2019 Saalfeld Griggs PC

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