Tilla Bay Farms, Inc. v. Tillamook County

Under TCLUO 1.060(1), just because a proposed use is specifically identified in some zones does not mean the county may not make a similar use determination regarding whether that use is allowed in other zones.

Petitioners challenge a county decision approving a new electrical transmission line which crosses six zones, including estuary natural (EN), estuary conservation (EC-1), and forest (F). Under the Tillamook County Land Use Ordinance (TCLUO), while transmission lines are not expressly identified as either a permitted or conditional use in the EN or EC-1 zones, distribution lines are listed as a conditional use. Under TCLUO 1.060(1), the county is authorized to make a similar use determination where a proposed use is not specifically identified by the ordinance or the ordinance is unclear as to whether the use is allowed in a particular zone. Because the county concluded that the TCLUO is unclear whether transmission lines are allowed in the EN and EC-1 zones and that transmission lines are physically and functionally identical to distribution lines, it approved the transmission line as a similar use.

In the second assignment of error, petitioners argue that, because transmission lines are specifically identified in some zones but not in the EN and EC-1 zones, the TCLUO is not unclear as to whether they are allowed in those zones and the county therefore erred in making a similar use determination at all. Because the Tillamook County Comprehensive Plan (TCCP) expressly limits new electric facilities in the EN zone to transmission lines and because the TCLUO establishes development standards for transmission lines in the EN and EC-1 zones, LUBA agrees with the county that the code is unclear whether transmission lines are allowed in the EN and EC-1 zones and that the county was therefore authorized to make a similar use determination. The second assignment of error is denied.

Under TCLUO 3.004(8)(1), which implements OAR 660-006-0025 and Statewide Planning Goal 4 (Forest Lands), non-forest uses on forest land must not force a significant change in, or significantly increase the cost of, accepted forest practices. The county concluded that, while the transmission lines would increase costs for herbicide application and timber harvest operations, any potential forest impacts would not be significant. In the sixth assignment of error, petitioners argue the county erred in reaching this conclusion because the transmission line would remove 36 acres of forest from production and increase trespass, vandalism, and theft. LUBA agrees with the county that, under TCLUO 3.004(8) and state law, the county was required to consider impacts only to the property remaining in forest use outside the transmission line right-of-way, which would be converted to non-forest use. In addition, because petitioners did not identify any forest practice that would be impacted by potential trespass, vandalism, and theft, their argument provides no basis for reversal or remand. The sixth assignment of error is therefore denied and the county’s decision is AFFIRMED.