Hudson v. Jackson County

Under ORS 197.015(10)(a), a floodplain development permit decision requires a determination of whether existing structures serve uses that are allowed or authorized in the RR-5 zone and is therefore not an exception to the statute.

The challenged decision approves a Floodplain Development Permit Application for certain non-residential structures accessory to a nonconforming asphalt batch plant use, previously located on the subject property. The central issue on appeal concerns whether the replacing the original concrete batch plant with an asphalt batch plant with accessory structures was an alteration of a nonconforming use.

On the motion to dismiss, the county argued that the 2017 floodplain development permit decision is excluded from LUBA’s jurisdiction under ORS 197.015(10)(b)(A). Furthermore, the county argued that, if the statute applies, the decision then turns on whether the standard that the county applied in making the decision require interpretation or the exercise of legal or policy judgment. LUBA noted that the county was correct that most of the standards are fairly technical standards which concerns placement and construction of structures to prevent damage or alter floodways. However, LUBA noted it is not accurate to say that the floodplain overlay standards require no evaluation of the nature and use of a proposed structure. Petitioner argued that the LDO requires the county to evaluate the intended use of the three structures at issue and determine whether that use is consistent with other applicable LDO provisions. The county cannot possible ensure compliance with LDO 7.2.2 unless it conducts some inquiry into the land use served by proposed structures in a floodplain hazard area, at least to ensure that the is not prohibited under the LDO. Here, the county planner who approved respondent’s application for a floodplain development permit made no such inquiry. REMANDED.