Cattoche v. Lane County

(1) In determining whether new uses will conflict with protected Goal 5 resources under OAR 660-023-0040, local governments must evaluate all uses allowed outright or conditionally in the new zone and may not limit their evaluation based on the uses proposed in the new development or any conditions placed thereon. (2) LUBA will not affirm a decision when the findings fail to identify relevant criteria, even if the parties identify evidence in the record which clearly supports that decision, if there is conflicting evidence in the record.

Petitioners appeal a county decision changing a 131.55-acre property’s comprehensive plan designation from Forestry to Non-resource, and zoning designation from Impacted Forest Land (F-2) to Rural Residential (RR-5). The subject property is designated as Peripheral Big Game Range and Groundwater Quantity limited in the county’s comprehensive plan provisions implementing Statewide Planning Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces). The county ultimately approved intervenor’s application, requiring site review to monitor and covenants to limit future development. This appeal followed.

Under OAR 660-023-0040, the county is required to (1) determine whether new uses will conflict with protected Goal 5 resources and, (2) if there is a conflict, perform an economic, social, environmental, and energy (ESEE) analysis. The county has adopted a residential density standard of no more than one dwelling per 40-acres to protect Peripheral Big Game Range. If this standard is exceeded, there is a conflict and an ESEE analysis is required. In approving the application, the county determined that rezoning the property to RR-5 presented no conflict because the approval, as conditioned, appropriately limited the density of future development.

In their second assignment of error, petitioners argue the county erred by failing to evaluate other uses allowed in the RR-5 zone that could conflict with Peripheral Big Game Range. Intervenor responds that the county was not required to evaluate uses other than the proposed residential development. LUBA agrees with petitioners that remand is necessary for the county to evaluate whether other uses allowed in the RR-5 zone would conflict with the Peripheral Big Game Range. In addition, conflicts are determined by the uses allowed in an applicable zone, not the limitations imposed on a specific development. Because a residential density of one dwelling per 5-acres is allowed outright in the RR-5 zone, exceeding the residential density standard for Peripheral Big Game Range, LUBA concludes remand is necessary for the county to conduct an ESEE analysis and to adopt findings explaining how any conditions of approval will avoid potential conflicts.

County policy allows development for quantity limited aquifers if an adequate showing is made that the additional withdrawal will not negatively impact surrounding users. Petitioners argue the county’s findings fail to adequately address this standard. Intervenors respond that the findings for other applicable criteria conclude that existing water users will not be adversely impacted. Under ORS 197.835(11)(b), LUBA must affirm a decision when the parties identify evidence in the record which clearly supports that decision, even if the findings fail to identify relevant criteria. However, this “clearly supports” standard is not met where there is conflicting evidence in the record. Because there is conflicting evidence on this point, LUBA concludes remand is necessary for the county to adopt findings addressing the competing evidence. The second assignment of error is therefore sustained.

Under OAR 660-015-0000(4), forest land includes, among other things, “other forested lands that maintain soil, air, water and fish and wildlife resources.” In their fourth assignment of error, petitioners argue the county misconstrued applicable law and made findings not supported by substantial evidence because it failed to show that the subject property did not meet this definition. In approving the application, the county merely concluded that the subject property is not “predominately forested.” In addition, the findings do not respond to testimony from area residents concerning the presence of wildlife. LUBA agrees with petitioners that “predominately forested” is not the correct standard for determining whether the property is forest land for purposes of OAR 660-015-0000(4), and that findings must address and respond to specific issues relevant to compliance with applicable approval standards that were raised below. Remand is therefore necessary for the county to evaluate whether the property must remain in forest zoning in order to maintain soil, air, water, and fish and wildlife resources. The fourth assignment of error is therefore sustained and the county’s decision is REMANDED.