Seits vs. Yamhill County

LUBA did not have jurisdiction to reverse and remand a decision to approve a conditional use permit when the decision was made based on the county’s building code which has not been adopted as part of the county’s land use code.

Petitioner appeals a Commercial Access Construction Checklist/Inspection Form (Construction Checklist) signed by the county public works director and a fire official from Tualatin Valley Fire & Rescue. Intervenor submitted an application for a conditional use permit (CUP) to operate a new commercial winery and tasting room on intervenor’s property. Intervenor proposed to use its existing private access easement, which extends over petitioner’s property, to serve the new commercial uses. Intervenor’s Construction Checklist was approved by the county works department and the fire official who crossed out the pre-printed words “Final Approval” on the form and replaced them with a handwritten notation stating the approval was temporary and requires further action and a final inspection. Petitioner appealed the challenged decision.

The county moved to dismiss the appeal and argued that the Construction Checklist is not a “final decision” by the county and does not fall within LUBA’s jurisdiction as a land use decision. The county argued that even if the decision is found to be final the Construction Checklist is only intended to implement a provision of the county’s building code, which has not been adopted as part of the county’s land use code. Petitioner responded that a land use decision was made because it modified Condition 10 of the CUP and such a modification was required to be processed as a land use decision. LUBA noted that if authority and a final decision is found, then the decision would be incorrect and not within LUBA’s jurisdiction because the decision is based on the Newberg Rural Fire Department or other applicable standards, not a land use decision.

Therefore, LUBA agreed with the county finding that whether the approval of the Construction Checklist is found to be a “final decision” or not is unimportant because petitioner has not met its burden to establish jurisdiction by showing that the county applied a comprehensive plan or land use regulation. DISMISSED.