"Persons who are adversely affected is intended to refer, at a minimum, to persons who are within sight and sound of a development proposal." Kamppi v. City of Salem, 21 Or LUBA 498, 501 (1991)

Adversely Affected Party

Adversely Affected ORS 197.830(3), (4) & (5) & ORS 215.416(11)(a)

Wilber Residents v. Douglas County, 34 Or LUBA 634 (1998) Whether a person is "adversely affected" within the meaning of ORS 215.416(11)(a) is a fact-specific inquiry that depends upon the nature of the development, and any factors regarding the person’s property or activities thereon that render the property more or less susceptible to impacts from the development.

Petitioners demonstrate they are adversely affected by a sewage treatment facility, where there is no attempt to rebut petitioner’s allegations that they are adversely affected because they are within "sight and smell" of the facility and petitioners also allege "direct, specific, tangible and negative impacts" from the proposed facility.

Walz v. Polk County, 31 Or LUBA 363, 369 (1996) It is well-established that someone whose property is within sight and sound of a property is presumptively considered "adversely affected or aggrieved" by land use decisions affecting it. Franklin v. Deschutes County, 30 Or LUBA 33, 41, aff’d 139 Or App 1 (1995); Kamppi v. City of Salem, 21 Or LUBA 498, 501 (1991); Stephens v. Josephine County, 14 Or LUBA 133, 135 (1985); Stephens v. Josephine County, 11 Or LUBA 154, 156 (1984); Worcester v. City of Cannon Beach, 9 Or LUBA 307,311-12 (1983).

Sight, Sound, & Smell

Physical Proximity Closeness or nearness (e.g., within sight, sound, or smell) and harm are criteria to consider when making a "standing" determination because of adversely affected, but physical proximity is not the sole standard. However, it has become a sort of proxy for adversely affected versus the real issue which is harm.

Friends of Douglas County v. Douglas County, 39 Or LUBA 156 (2000) The facts that the petitioners have no geographic proximity to the area affected by the decision and that they can suffer no economic or noneconomic harm are germane to whether they were adversely affected, not to whether they were aggrieved by the planning commission’s decision.

Jefferson Landfill Comm. v. Marion Co., 297 Or 280, 283, 686 P2d 310 (1984) In the context of section 4(3), "adversely affected" means that local land use decision impinges upon the petitioner’s use and enjoyment of his or her property or otherwise detracts from interests personal to the petitioner. Examples, of adverse effects would be noise, odors, increased traffic or potential flooding.

Jefferson Landfill Comm. v. Marion Co. 65 Or App 323, 325 (1983) The court pointed out that the statute does not limit either adverse affect or aggrievement to property interests which must be in physical "proximity" to the disputed land.

More Information

Benton County v. Friends of Benton County, 294 Or 79, 653 P2d 1249 (1982) The court held that the interpretation of the statutory words, "adversely affected" or "aggrieved" in section 4(3) is a question of law to be decided by the court, citing McPherson v. Employment Division, 285 Or 541, 591 P2d 1381 (1979). It went on to discuss the two terms, stating that "aggrieved" means something more than being "adversely affected" by it. The court pointed out that the statute does not limit either adverse affect or aggrievement to property interests which must be in physical "proximity" to the disputed land use.

Marbet v. Portland Gen. Elect., 277 Or 447, 454, 561 P2d 154 (1977) Nor does the statute support PGE’s contention that the "public interest" is restricted geographically. Communities in immediate proximity to a proposed site have economic and other reasons to desire or to oppose a project that differ from the interests of a wider public, as the hearing in this case shows.

Would you like to learn more about citizen involvement in land use planning? Contact a member of the Land Use Committee of the Hugo Neighborhood.

Footnotes