Landwatch Lane County v. Lane County

Under OAR 660-006-0035(3), a county may not rely upon an applicant’s bare assertion that a proposed structure complies with applicable fire siting standards if other evidence in the record indicates to the contrary that it does not.

Petitioner appeals a county decision approving an accessory structure to an existing dwelling on land zoned for forest uses. The subject property is 31 acres in size, zoned as Impacted Forest Lands (F-2), and developed with a single-family dwelling. Intervenor applied to the county for approval to construct an accessory structure near the single-family dwelling to be used as an art studio. The county approved the structure subject to conditions that prohibit use of the structure for cooking or sleeping. This appeal followed.

On the third assignment of error, petitioner argues the county’s conditions are unenforceable, and that nothing would prevent intervenor from converting the structure to an impermissible residential use after the required building inspection. Intervenor responds, and LUBA agrees, that petitioner offers no reason to believe that, if the county received a complaint regarding the structure, an appropriate enforcement proceeding is not available or would not be effective at enforcing the conditions. Because the county is not obligated to adopt conditions of approval that are self-enforcing or incapable of being violated, the third assignment of error is denied.

Lane Code (LC) 16.211(8), which implements OAR 660-006-0035(3), requires that structures in forest zones maintain a primary safety zone extending a minimum of 30 feet in all directions around all structures. If the percentage of downslope is between 10 and 20 percent, however, the primary safety zone must extend 50 feet down the slope. In its findings below, the county found that the development area is flat and that only 30 feet of primary safety zone is required. On the fourth assignment of error, petitioner claims the finding that the land between the development area and the southern property line is “flat” is not supported by substantial evidence, citing a topographic map prepared by intervenor which indicates that the slope in that area exceeds 10 percent. Intervenor does not dispute that the topographic map appears to show an average slope in excess of 10 percent but argues the county’s finding is based on other substantial evidence, namely intervenor’s own assertion that the slope within 30 feet of the property is less than 3 percent. LUBA agrees with petitioner that, based on the evidence in the whole record, a reasonable person would not have relied upon the applicant’s bare assertion that all slopes within 30 feet of the development area are less than 3 percent and that remand is necessary for the county to reconsider the evidence on this point and adopt new findings. The fourth assignment of error is therefore sustained and the county’s decision is REMANDED.