Carlsen v. City of Portland

In 1995, the Oregon Holocaust Memorial Coalition (defendant) sought permission from the City of Portland (the city) (defendant) to place a Holocaust memorial within a city park. The city council adopted a resolution reserving a location for the memorial. Neither the Arlington Heights Neighborhood Association nor board member Doris Carlsen (collectively, AHNA) (plaintiffs) appealed the city council’s decision. The city had a siting policy providing a review process and appropriateness criteria for memorials. The criteria included, for example, whether the person or event being memorialized was significant, the memorial represented broad community values and had timeless qualities, and the memorial’s scale and character were commensurate with the setting. The city followed the siting-policy requirements in considering the Holocaust memorial only after opposition to the location emerged. In 1998, the city council approved the memorial, concluding that it was a permitted use under the city’s land-use regulations and complied with the siting policy. AHNA appealed to the Land Use Board of Appeals (LUBA), arguing that (1) the memorial’s approval under the siting policy was a land-use decision and discretionary approval of a proposed development of land and therefore a permit subject to statutory procedures that required the disclosure of city-council members’ ex parte contacts and the provision of notice and hearing rights; (2) the city-council members were actually biased; (3) because the siting policy was not “acknowledged” pursuant to another regulation, it could not provide the basis for approval of a permit; and (4) the city’s decision was wrongly decided on the merits. LUBA agreed that the city’s decision approved a “permit” and a remand was necessary for city-council members to disclose the substance of any ex parte communications, but it determined that the failure to provide notice of the city council’s 1995 decision was relevant only to that decision, which AHNA had not appealed. LUBA rejected the bias and not-acknowledged errors and decided it did not have to reach the argument regarding the merits of the city council’s decision. AHNA sought review of LUBA’s remand, arguing that (1) the city’s decision reserving a location was not final until the second stage of the review process was complete, and therefore LUBA erred in holding that errors affecting the 1995 decision could not be raised in the appeal from the 1998 decision; and (2) because the siting policy had not been acknowledged, the city could not apply it as a land-use regulation or development ordinance.