Landwatch Lane County v. Lane County

(1) While the focus under ORS 197.247(1)(b)(A) is on the number of lots or parcels, and not land area, there is only one test area, not two. (2) Where adverse expert testimony is submitted, some level of expertise may be required to establish the sufficiency of a response to the adverse expert testimony.

Petitioner appeals a county decision amending the plan and zoning designation of a 54-acre property from Forest Land to Marginal Land (ML). Petitioner argues that the county misinterpreted ORS 197.247(1)(b)(A), which requires “"[a]t least 50 percent of the proposed marginal land plus the lots or parcels at least partially located within one-quarter mile of the perimeter of the proposed marginal land consists of lots or parcels 20 acres or less in size on July 1, 1983." The county interpreted this standard as a calculation of “[t]he total area of all of the lots and parcels, including the subject property, that are 20 acres or less, must be equal to or greater than one half of the total area of the study area.” LUBA agrees with petitioners that the county misinterpreted the standard as an analysis of the relative area of the subject property, whereas ORS 197.274(1)(b)(A) requires an analysis of the relative number of lots. This subassignment of error is sustained.

ORS 197.247(2) identifies the lots and parcels eligible for consideration in determining whether the percentage test in ORS 197.247(1)(b) is met. The lots and parcels considered by the county for the purposes of the marginal lands statute must also be “lawful.” The county assumed in the first instance that the lots or parcels included on intervenor’s list had been lawfully created and determined the petitioner has the burden to show that a sufficient number of lots were unlawful. LUBA found that the county erred in shifting the burden of proof to petitioners, since it is the applicant’s burden of proof to establish in the first instance that the applicable criteria are met. This subassignment of error is sustained and the first assignment of error is sustained.

In their second assignment of error, petitioner argues that intervenor’s Environmental, Social, Economic, and Energy (ESEE) analysis is inadequate. OAR 660-023-0040(3) requires that, when evaluating the introduction of a conflicting use into an identified Goal 5 resource area, the local government must determine an impact area for each significant resource site. The impact area shall be drawn to include the entire area in which allowed uses could adversely affect the identified Goal 5 resource. The property is designated big game habitat, and the county determined that the property itself was the appropriate impact area. Because the property is adjacent to forest land, and because it was not established whether that land is also designated big game habitat, LUBA concludes that this impact area is not consistent with OAR 660-023-0040(3). Petitioner also argues that the ESEE analysis is not supported by substantial evidence because it was not prepared by someone with environmental expertise, but by an attorney land use consultant. Because the county considered general guidance from the Oregon Department of Fish and Wildlife, LUBA agrees with petitioner that expertise is required to establish the sufficiency of responsive evidence. This subassignment of error is sustained, the second assignment of error is sustained, and the county’s decision is REMANDED.