Oregon Court of Appeals Affirms City, LUBA Decision in Seven-Acre Case

The Oregon Court of Appeals has sided with the state’s land use board in upholding the city of Canby’s approval in the long-running case of the Seven-Acre Subdivision located at the end of North Maple Street.

City Attorney Joe Lindsay informed the City Council at their last meeting that the appellate court had affirmed the decision without issuing an opinion in the case. It’s unclear if this is the final twist in a saga that has been ongoing for over four years.

The decision could be appealed again, to the Oregon Supreme Court, but City Attorney Lindsay did not indicate that he thought that would happen.

The proposal was for a 22-lot subdivision on — you guessed it — seven acres of land at the end of North Maple (technically, 6.84 acres, but who’s counting). The project, which was designed in six phases by Canby Development LLC, has been in the works since at least 2015.

It was heard and approved, unanimously, by the Planning Commission in 2017 and appealed to the City Council that same year by local attorney Michael McNichols, Tony Polito, and the Friends of NE Maple Street. Councilors heard the case in January 2018, and they also approved it, with conditions. McNichols and co. then appealed to the state land use board of appeals, also called LUBA, which ultimately upheld the city’s decision.

McNichols then filed the case with the Oregon Court of Appeals.

One of the main bones of contention was over the proposed use of the Molalla Forest Logging Road, which is on city-owned land and exists within a conservation easement benefiting the Oregon Department of Fish and Wildlife.

The city approved the subdivision’s request to use the road for emergency access purposes. McNichols had appealed on the basis that the city didn’t have the legal authority to grant such a variance, and also that this use would be out of line with the existing easement and municipal codes.

LUBA, however, and now, the Oregon Court of Appeals, felt otherwise.

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