## Facts

- The Oregon Holocaust Memorial Coalition proposed a Holocaust memorial in a City of Portland park and sought City approval.
- The City evaluated potential locations and selected a 23,850-square-foot clearing in Washington Park zoned Open Space (OS), near a residential neighborhood.
- In 1995, the City Council adopted a resolution reserving the Washington Park site for a “contemplative memorial garden”; opponents learned of the resolution but did not appeal it.
- The proposed memorial would occupy about 3,500 square feet and include walls, walkways, landscaping, and educational features; the nearest residential property line was about 220 feet away.
- The City anticipated substantial visitation (including guided groups) and processed the proposal under a 1989 memorial siting policy with specified review steps and criteria.
- The City approved construction of the memorial; opponents challenged that approval before the Land Use Board of Appeals (LUBA).

## Issues

1. Whether challenges to reserving the Washington Park site were barred because no timely appeal was taken from the City’s 1995 resolution.
2. Whether the City’s 1989 memorial siting policy was an improper or conflicting land use regulation, or could be applied alongside acknowledged land use regulations.
3. Whether the City plausibly interpreted its Open Space zoning provisions to allow the memorial as a park/open-space use.
4. Whether LUBA adequately addressed the Association’s evidentiary and findings-based challenges (including asserted impacts such as traffic, parking, and intensity of use).

## Decision

- The Oregon Court of Appeals affirmed LUBA’s decision in part and remanded in part.
- The court agreed that challenges aimed at the City’s 1995 site-reservation decision were untimely because that decision was not appealed when made.
- The court upheld LUBA’s rejection of arguments that the memorial siting policy created an unauthorized parallel land use scheme, concluding the policy functioned as a review framework applied with existing land use regulations.
- The court upheld LUBA’s approval of the City’s code interpretation to the extent it was a plausible reading that permitted the memorial within park/open-space uses.
- The court remanded to LUBA to consider the Association’s fourth and fifth assignments of error that LUBA had not fully addressed.

## Legal Principles

- Failure to timely appeal an earlier land use decision can bar later attempts to attack that decision through review of subsequent approvals.
- A local government’s interpretation of its own land use regulations is upheld on review if the interpretation is plausible, even if other interpretations could also be reasonable.
- A policy providing procedures and criteria for evaluating a proposal may be applied in conjunction with acknowledged land use regulations without necessarily operating as an independently controlling zoning scheme.
- Appellate review may require remand when LUBA does not resolve properly presented assignments of error challenging the adequacy of findings or evidentiary support.

## Conclusion

The court largely sustained LUBA’s treatment of timing, policy-versus-regulation arguments, and the City’s plausible interpretation of its Open Space code to allow a memorial in a public park, but required LUBA on remand to address remaining assignments of error concerning the City’s supporting findings and evidence.


Carlsen v. City of Portland, 169 Or. App. 1, 8 P.3d 234 (Or. Ct. App. 2000)