Burgermeister v. Tillamook County

A local government’s findings in support of a land use decision must identify relevant approval standards, set out facts believed and relied upon, and explain how those facts underpin the decision, and, pursuant to ORS 197.835(11)(b), LUBA will not affirm a decision based on insufficient findings except where a finding of compliance with the applicable criteria is either obvious or inevitable. See Heiller v. Josephine Cnty., 23 Or LUBA 551 (1992); see also Marcott Holdings, Inc. v. City of Tigard, 30 Or LUBA 101 (1995) and Terra v. City of Newport, 36 Or LUBA 582 (1999).

Petitioner Cheryl Burgermeister (Burgermeister) appealed a county decision granting conditional use approval to site four wind turbines on top of the Schooner Restaurant near the mouth of Netarts Bay in the unincorporated community of Netarts in Tillamook County. The property is subject to the Tillamook County Land Development Ordinance (TCLDO). Per the TCLDO, wind turbines like those in question are deemed a Wind Energy Conversion System (WECS). WECSs are not specifically listed as permitted outright nor a conditional use in the Netarts Neighborhood Commercial zone (NT-C1) under TCLDO 3.348(2) and (3), respectively. The planning director determined that the WECSs at issue could be approved as a conditional use under the TCLDO because WECSs have an impact similar to that of communication towers, utility substations, and transmission lines, which are all conditionally allowed in the NT-C1 zone. The planning commission then granted conditional use approval for the disputed WECSs. Burgermeister submitted an appeal of that approval, which the board of county commissioners denied.

Burgermeister’s third assignment of error contended that the noise from the turbines would offend the conditional use criterion set out at TCLDO 6.040(4) by violating the Oregon Department of Environmental Quality’s (DEQ) noise standards. Burgermeister argued that violating DEQ’s standards would alter the character of the surrounding area in a way that would substantially limit, impair, or prevent otherwise permitted uses of the surrounding properties. LUBA determined that the county adopted no findings addressing TCLDO 6.040(4). Pursuant to the established requirements for sufficient findings, the county’s findings must: “(1) identify the relevant approval standards, (2) set out facts which are believed and relied upon, and (3) explain how those facts lead to the decision[.]” Heiller v. Josephine Cnty., 23 Or LUBA 551, 556 (1992). LUBA found that the county’s findings only met the first requirement. REMANDED.