Neil v. Columbia County

Under ORS 197.829(1), LUBA must affirm a county board of commissioners’ interpretation of its code provision, unless the interpretation is inconsistent with the express language, purpose or policy underlying the code provision.

     Petitioners appealed a board of county commissioners’ decision approving a minor variance and partition to create three parcels, which fell below the minimum five-acre parcel requirement.

     Under Columbia County Zoning Ordinance (CCZO) 1504, a Minor Variance encompasses a request for a variance of less than 10 percent from the minimum lot size or parcel size requirement. The petitioners argued that the county erred in failing to apply the introductory paragraph of CCZO 1504.1. Specifically, the petitioners asserted that the county failed to consider whether there are “unusual circumstances” that cause “undue hardship,” and whether the variance is in the public interest.  The intervenors responded, and LUBA agreed, that the issue was not raised below, and was therefore waived per ORS 197.763(1).

     The petitioners also challenged the board of county commissioners’ interpretation of CCZO 1504.1A(2) and (4), as well as the adequacy of the findings determining that the appropriate criteria were met. CCZO 1504.1A(2) requires that “the conditions upon which the request for a variance is based are ‘unique to the property,’ and are not applicable generally to other property.” 1504.1A(4) demands a finding that “strict compliance” with the CCZO would cause an “unnecessary hardship.” In regard to county codes, under ORS 197.829(1), LUBA must affirm the county commissioners’ interpretations, unless the interpretations are inconsistent with the “express language, purpose or policy” underlying the provision. LUBA denied the petitioners’ assignment of error, finding that the language in the county’s application form had no bearing on the meaning of the CCZO provisions, and did not lead to the conclusion that the commissioners’ interpretation is reversible. LUBA also determined that the petitioners’ challenge to the county’s reliance on the existing mismatch in zoning was an impermissible collateral attack on the provision. AFFIRMED.