VanSickle v. Klamath County

(1) Under ORS 197.829(1), LUBA must affirm a county’s interpretation of its own regulations if it is not inconsistent with its express language or underlying purpose or policies, and not contrary to state law. (2) Where a party does not challenge responsive findings, that party does not establish a basis for reversal or remand.

Petitioners appeal a county decision approving a plan amendment, zone change, and exceptions to Statewide Planning Goal 4 (Forest Lands) to change a 5-acre property's plan designation from Forestry to General Commercial and zoning designation from Forestry-Range to General Commercial. The property is designated big game habitat.

KCSO 57.030 provides that “[a]ll land uses, developments and associated activities which represent . . . conflicting uses to a resource . . . shall be processed as conditional uses unless otherwise specified.” In their first assignment of error, petitioners contend that the county erred in (1) avoiding the conditional use permit (CUP) process and (2) failing to require the applicant to provide documentation “regarding requirements for state or federal permits or licenses, and that appropriate resource management agencies have reviewed the development proposal against its plans, policies, and programs” as required by KCZO 57.060. LUBA concludes that the county’s interpretation of KCZO 57.030(1) is consistent with its express language and underlying policy. Because a CUP process is required unless otherwise specified, and since KCZO 57.030.A.1 provides that “[u]ses identified as a permitted use in the underlying zone shall be reviewed solely against the [Article 57] standards and criteria,” a CUP was not required here. In addition, LUBA concludes petitioners’ argument that the county’s decision fails to comply with the documentation requirement in KCZO 57.060 lacks merit because “there is no ‘development proposal’ to be reviewed by agencies – there is simply a zone change and comprehensive plan amendment[.]” The first assignment of error is denied.

In their second assignment of error, petitioners argue the facilities that intervenor may develop in the future provide “convenience” as opposed to meeting a “public need.” KCZO 48.030(1) requires that the proposed plan change be “supported by scientific studies or other factual information, which documents the public need for the change[.]” Substantial evidence exists to support a finding when the record, viewed as a whole, would permit a reasonable person to make it. Because petitioners failed to address the public testimony in support of the change or explain why it is not substantial evidence of public need, the second assignment of error is denied.

In their fourth assignment of error, petitioners allege that the county failed to perform an alternatives analysis that is required under KCDC 57.060, ORS 197.732(c)(B), and OAR 660-004-0020. However, because petitioners failed to challenge the county’s responsive findings in their alternatives analysis, they do not establish a basis for reversal or remand, the fourth assignment of error is denied, and the county’s decision is AFFIRMED.