Hood River Valley Residents Committee v. Hood River County

OAR 660-004-0018 requires a new reasons exception when a site plan proposes a change in either the type or intensity of the use allowed by a previous reasons exception.

Intervenor-respondent Apollo Land Holdings, LLC owns a 32.64-acre property. In 2016, intervenor applied for site plan review approval to construct a 50-room hotel on a portion of the property. The plan was approved, and petitioner subsequently appealed the decision to the planning commission. The commission reversed the decision, and intervenor appealed. The board of county commissioners reversed the planning commission’s decision, and this appeal followed.

On its second assignment of error, petitioner argues that OAR 660-004-0018(2)(b) requires an exception to site the proposed hotel or requires the count to explain why no new exception is required. Respondent argues that OAR 660-004-0018 does not apply to its application, because the rule applies only to the enactment of the initial local plan and zone designations for areas subject to a physically developed or irrevocably committed exception, or where a plan amendment or zone change for property subject to the exception is later proposed to accommodate new uses.

LUBA disagreed with respondent and stated that although the rule contains language that suggests the rule applies only in circumstances when a local government is initially zoning or subsequently changing the plan or zone of property that is subject to an exception, that reading fails to consider the other purposes of OAR 660-004-0018(1). Specifically, the other purposes provide that “physically developed and irrevocably committed exceptions . . . are intended to recognize and allow continuation of existing types of development in the exception area,” and that “exceptions to one goal . . . do not authorize uses . . . or activities other than those recognized or justified by the applicable exception. In particular, OAR 660-004-0018 requires a new reasons exception when a site plan proposes a change in either the type or intensity of the use allowed by a previous reasons exception. REMANDED.