Blu Dutch LLC v. Jackson County

Under LDO 8.7.1(G), a fire safety inspection is not required prior to approving a forest dwelling application unless a fire agency comments on the application and recommends such an inspection prior to development approval and the county makes a finding that such measures are necessary to protect public safety.

Petitioner appeals a county decision denying its application for a large tract forest dwelling. The subject property is a vacant parcel zoned Forest Resource (FR) and is surrounded by parcels also zoned FR. Petitioner submitted an application to site a large tract forest dwelling on the subject property. Concluding that the application failed to satisfy Jackson County Land Development Ordinance (LDO) 8.7.1(G)(4), the hearings officer denied the application. This appeal followed.

LDO 8.7.1(G) provides examples of safety guidelines that are suggested by the county but that the county may require if it finds them necessary to protect public safety. Included in this list is a catch-all provision allowing the county to impose other measures recommended by a fire agency commenting on an application. In its assignment of error, petitioner argues the hearings officer erred in concluding that LDO 8.7.1(G) requires a fire safety inspection prior to approving a forest dwelling application. Applying principles of statutory construction, LUBA agrees with petitioner. The plain language of LDO 8.7.1(G) makes clear that its provisions are merely “guidelines” that “are suggested” unless a county finds that they are necessary. Here, the hearings officer did not make such a finding. In addition, other provisions of LDO 8.7.1 strongly suggest that fire safety inspections are intended as a criterion of building permit approval, not development approval. Petitioner’s assignment of error is therefore sustained.

LDO 4.3.4 requires that such applications be approved only when the county finds that the use will not force a significant change in accepted forest practices on forest lands. In its second contingent cross assignment of error, intervenor argues the hearings officer erred in concluding the state forester is not likely to restrict forest practices on an adjacent property because the subject building site is a long distance from the adjacent property and because a landslide from the adjacent property would be slowed by a road and a creek north of the subject building site. LUBA agrees with intervenor. Because this description of the proposed location of the dwelling on the subject property is not accurate, petitioner’s second contingent cross assignment of error is therefore sustained, in part, and the county’s decision is REMANDED.