Ooten v. Clackamas County

Under OAR 660-004-0018, a previously taken statewide planning goal exception does not remove the subject property from the necessity of further exceptions to redesignate and rezone from Rural Residential Farm Forest to Rural Industrial.

Bruce Goldson owns property consisting of tax lots 1000 and 1100, zoned Rural Residential Farm Forest 5-acre (RRFF-5). He uses the property to operate a paving business and vehicle and RV sales. He has made numerous attempts to confirm his nonconforming use and expand, and in 2013 applied to rezone the lots to Rural Industrial District (RI). The board of commissioners approved, but only rezoned the portions of the lots containing shop buildings and vehicle access, leaving the RRFF-5 zoning in place on portions containing two dwellings and treed areas. Ooten appealed to LUBA.

Ooten first argued that the county’s decision that a reasons exception to statewide planning goals was not needed under OAR 660-004-0018 was error because they only considered current uses on the property. LUBA agreed, holding that the county must consider uses that were “recognized or justified” in the prior exception taken in 1980. Ooten argued that the county misinterpreted the language “Areas may be designated [RI] when . . . [A]reas shall have an historical commitment to industrial uses. LUBA agreed with the county’s interpretation except as to a new driveway, where there was no explanation how that was a “historical commitment.” Ooten argued that the county improperly determined that longstanding industrial use of the property made it “consistent with the rural character” of the area and the uses are not “labor intensive.” LUBA held that the county’s findings were inadequate to explain that inconsistency, and that they failed to address how the employment of up to 40 people on the property would not be “labor intensive.” Ooten next argued that the county committed procedural error by accepting new evidence regarding the new driveway after the record was closed, and that the issue of whether the new driveway would comply with Clackamas County Zoning Ordinance 1202.01(E). LUBA agreed on both points, holding that reliance on the new evidence was error, and that failure to address the issue of compliance required remand. Ooten next argued, and LUBA agreed, that the baseline for measurement of traffic impact was improper because it measured the current uses at a level which included current illegal industrial uses of the property. REMANDED.