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Date ArticleType
9/1/2023 Member News

Industry Success: Icon Construction Wins Appeals Case


We’d like to share a bit of good news about HBA’s involvement in a recent legal victory that may end up having broader statewide implications for our industry. The case involved a City Council that arbitrarily denied a proposed planned development, one which had already been reviewed and approved by its Planning Commission. After the developer appealed the City Council’s decision to the State Land Use Board of Appeals (LUBA) and won, the City appealed to the Court of Appeals. This is where HBA stepped in… more details are below.

Last year, following more than a decade of planning, Icon Construction received approval from Oregon City's Planning Commission to build 426 homes on 92 acres in the city limits, meeting siting, density, UGB, and other public requirements. Then, in a single public meeting last fall, the City Council denied the project from moving forward, citing a lack of “commercial elements” though never articulating them or giving Icon an opportunity to make corrections. Following this, Icon appealed this decision to the state’s Land Use Board of Appeals (LUBA), and won. Rather than respecting that remand and working with Icon to move the project forward, the City Council and a neighborhood association chose instead to file a suit in the state’s court of appeals.

Following our Government Affairs Committee’s recommendation, and with approval from our Board of Directors, HBA’s Building Industry Legal Defense fund (BILD) was tapped to formally support, through an Amicus Brief filing, the Appeals Court case. In August, that case was recently ruled on in favor of the developer and the proposed development. This is a clear win for our industry’s ability to defend against NIMBY city councils and erroneous justifications used to deny new housing applications without presenting objective standards.

Congratulations to our friends at Icon Construction and to Garrett Stephenson at Schwabe, who was leading Counsel on this case. Also, a special thanks to our partners at Jordan Ramis who provided stellar legal guidance and a generous discounted rate to file the Amicus Brief on behalf of HBA. While we don’t typically get involved in many individual member cases, this one had clear broad implications for the industry given the arbitrary nature of the decision, the lack of following normal procedures for addressing or correcting any areas of concern, and the lack of the use of clear and objective standards.