Reinert v. Clackamas County

Clackamas County Zoning and Development Ordinance 1307.16(K) restrictions on the re-filing of a Type II or III land use permit, requiring that two years pass before a substantially similar application is re-filed, means a “high degree of similarity” between the two applications, which is evaluated by comparing characteristics of the application such as number of lots, average lot sizes, traffic patterns, and on-street parking.

     The petitioners appealed a hearings officer’s decision that approved a 62-lot subdivision on R-10 Urban Low Density Residential (R-10) land. Clackamas County Zoning and Development Ordinance (ZDO) 1307.16(K) allows re-filing of a Type II or III land use permit only in particular circumstances. ZDO 1307.16(K) requires that two years pass before a substantially similar application is re-filed, or a reviewing authority finds that an enumerated circumstance renders the specific reasons for denial inapplicable. The petitioner alleged that ZDO 1307.16(K)(1) prohibited the intervenor from seeking R-10 approval because the R-10 Subdivision application was “substantially similar” to the R-8.5 Subdivision application, that was previously denied. LUBA held that “substantially similar” as used in ZDO 1307.16(K) means “a high degree of similarity.” To evaluate the degree of similarity, LUBA compared the number of lots, average lot sizes, traffic patterns, and on-street parking. LUBA determined the hearings officer’s conclusion that the two applications were not “substantially similar” was correct.

     Petitioners also argued that the hearings officer improperly interpreted ZDO 1002.04(A). LUBA found that the hearings officer’s conclusion that ZDO 1002.04(A) did not require tree preservation if the tree preservation would result in a reduction of the number of lots that could be developed, was correct. LUBA held that the express language of ZDO 1002.04(A) requires a hearings officer to balance tree preservation with development, and tree preservation is only necessary when it would not reduce the number of lots permitted, and if it is feasible given the needs of development. Petitioners’ second assignment of error alleged that the conclusion that ZDO 1002.04(A) was met was not supported by substantial evidence in the record. LUBA deemed that since intervenor’s expert responded to the analyses made by petitioners’ expert, a reasonable decision maker would rely on this evidence to find that ZDO 1002.04(A) was met. AFFIRMED.