Stafford Investments LP v. Clackamas County

Under CCCP Policy 4.LL.3, a finding that a property has “an historical commitment to commercial uses” for purposes of allowing an RC designation requires that commercial uses have constrained the scope of uses on the property such that going forward only commercial uses are feasible, which excludes consideration of the temporary and incidental commercial uses.

Petitioner appeals a county decision denying its application to change its property’s comprehensive plan and zoning map designations from Rural and Rural Residential/Farm-Forest 5-acre minimum (RRFF-5) to Rural Commercial (RC). The county based its denial the fact that the property is located within an urban reserve area, within which county policy prohibits such amendments, and that petitioner failed to demonstrate the property had been “historically committed to commercial uses,” which would have allowed an RC designation under Clackamas County Comprehensive Plan (CCCP) Policy 4.LL.3 (Policy 4.LL.3).

In its first assignment of error, petitioner argues the county erred in denying its application since LCDC had not approved the urban reserve area designation when the county issued its decision. The county concedes that the urban reserve designation was not final at the time of its decision and therefore is not a valid basis for denying petitioner’s application. However, the county argues and LUBA agrees that, while the first assignment of error is sustained, this error does not warrant remand because the county identified other bases for denial.

In its second assignment of error, petitioner challenges the county’s findings that the uses of the subject property do not demonstrate “an historical commitment to commercial uses” for purposes of allowing an RC designation under CCCP Policy 4.LL.3. Petitioner argues that the “historical commitment” inquiry is akin to a nonconforming use verification and that unlawfully established commercial uses that have existed on a property for the 20 to 30-year period of time that some commercial uses have operated on the subject property should be sufficient to constitute historical commitment to commercial uses. The county responds that the term “commitment” requires that commercial uses have constrained the scope of uses on the property such that going forward only commercial uses are feasible, which excludes consideration of the temporary and incidental commercial uses that have existed on the subject property. Because LUBA cannot say that the county’s interpretation of the term “commitment” is implausible, the second assignment of error is denied and the county’s decision is AFFIRMED.