Morton v. Clackamas County

A hearings officer reviewing a permit application under Clackamas County Zoning and Development Ordinance 1203.01(D) must apply a three-prong inquiry to determine if the use would “limit, impair, or preclude” use of surrounding properties.

New Cingular Wireless PCS received a conditional use permit to construct a telecommunications tower on land in Clackamas County zoned FF-10. Under Clackamas County Zoning and Development Ordinance (ZDO) 1203.01(D), the proposed tower must not “alter the character of the surrounding area in a manner that substantially limits, impairs or precludes the use of surrounding properties for the primary uses allowed.” Appealing the permit, Morton argued that the hearings officer applied a too-narrow interpretation of the primary residential uses in this zone and that the visual impact of the tower would violate ZDO 1203.01(D). LUBA first held that the proper definition of “use” was that defined in ZDO 202, to be applied on remand. The Board analyzed the three-pronged inquiry under ZDO 1203.01(D) and found that the hearings officer had only justified findings based on the “preclude” prong of the inquiry, failing to address the “limit” or “impair’ prongs. Morton also argued that the hearings officer should have considered the diminution in property values. However, the Board concluded that the county was not required to do so under ZDO 1203.01(D), citing their decision in Tylka v. Clackamas County. The case was remanded to the hearings officer with instructions to apply the remaining two prongs of ZDO 1203.01(D). REMANDED.