York v. Clackamas County

Under ZDO 406.05(A)(1) and OAR 660-006-0025(5)(b), the proper comparison for purposes of assessing whether there is significantly increased risk of fire hazard is not between the proposed solar facility and other solar facilities, but between the proposed facility and the preexisting farm or forest conditions.

Petitioner appeals a county decision approving a 10-acre solar power facility. Intervenor applied to develop 10-acre solar power facility on property zoned Timber (TBR), in an area currently used to grow Christmas trees. Clackamas County Zoning and Development Ordinance (ZDO) 406 lists "[c]ommercial utility facilities for the purpose of generating power" as a conditional use in the TBR zone, so long as the facility does "not preclude more than 10 acres from use as a commercial forest operation." The hearings officer approved the application with conditions and this appeal followed.

ZDO 1203.03(D) requires a finding that proposed conditional uses will not “alter the character of the surrounding area in a manner that substantially limits, impairs, or precludes” the primary use of the surrounding properties. In his analysis of whether ZDO 1203.03(D) was met, the hearings officer concluded that the “limits, impairs, or precludes” elements can be distilled into a single inquiry into whether the proposed use would make the exercise of a surrounding primary use “substantially worse.” In the third assignment of error, petitioners argue that the hearings officer misconstrued ZDO 1203.03(D) in collapsing the “limits” and “impairs” elements into a single inquiry. LUBA agrees with petitioners that, because the dictionary definitions for “limit” and “impair” show that they have different meanings, remand is required for the hearings officer to apply ZDO 1203.03(D) in such a way that acknowledges those different meanings. The third assignment of error is therefore sustained, in part.

ZDO 406.05(A)(1) and OAR 660-006-0025(5)(b) require a finding that “[t]he proposed use will not significantly increase fire hazard or . . . risks to fire suppression personnel[.]” In approving the application, the hearings officer found no reason to believe that the proposed facility would be more hazardous than any other solar facility. In the sixth assignment of error, petitioners argue the proper comparison is not between the proposed solar facility and other solar facilities, but between the proposed facility and the preexisting farm or forest conditions. LUBA agrees with petitioners that the most meaningful comparison for purposes of ZDO 406.05(A)(1) and OAR 660-006-0025(5)(b) is the pre-development fire hazard (Christmas tree farm) compared to the post-development fire hazard (solar facility), and that remand is necessary to adopt new findings, supported by substantial evidence, that conduct an appropriate evaluation of fire hazard.