Dooley v. Wasco County

(1) Under OAR 660-004-0028(1)-(2), the mere existence of residential uses near a property proposed for an irrevocably committed exception to Goal 4 (Forest Lands) does not demonstrate that such property is necessarily committed to a non-resource use. (2) Under OAR 660-004-0028(3), conflicts resulting from odors, noise, spraying, and dust are not sufficient to support an irrevocably committed exception.

The county approved irrevocably committed and physically developed exceptions to Goal 4 (Forest Lands). This appeal followed.

Under ORS 197.732(2)(b) and OAR 660-004-0028(1), where land is irrevocably committed to uses not allowed by the applicable goal because “existing adjacent uses and other relevant factors” make those uses “impracticable,” a local government may approve an exception to the goal. Under OAR 660-004-0028(2), whether land is irrevocably committed depends on the relationship between the subject property and adjacent lands. The subject property is bordered on the north and east by residential lands and on the south and west by forest lands. Because the county’s findings “spend considerable ink” discussing residential property located almost a mile away, while failing to address the subject property’s relationship to the adjacent forest lands, LUBA agrees with petitioners that the county’s findings are inadequate to demonstrate that the standards of an irrevocably committed exception have been met.

Under OAR 660-004-0028(3), in order to approve an irrevocably committed exception to Goal 4, a local government must demonstrate that “farm use,” “propagation or harvesting of a forest product,” and “forest operations or forest practices” are impracticable. The county found that, given the surrounding residential lands, “commercial resource use” of the subject property is impracticable due to, among other things, the inability to use spraying to control insects and vegetation and the noise and safety risks of logging near residential lands. LUBA agrees with petitioners that the correct standard is not “commercial resource use” and that the county must consider whether smaller forest operations would create similar conflicts. LUBA also agrees with petitioners that (1) the county failed to establish that forest use of the property is impractical given that its soil types are capable of supporting Ponderosa Pines and (2) conflicts resulting from noise and spraying are a consequence of rural life and do not support a finding that resource use is impracticable. The first, second, and third assignments of error are therefore sustained.

Under OAR 660-004-0025(1), where land is physically developed “to the extent that it is no longer available for uses allowed by the applicable goal,” a local government may approve an exception to the goal. However, under OAR 660-004-0025(2), uses allowed by the applicable goal may not be used to justify such an exception. Because the subject property is developed with dwellings, accessory structures, a well, and driveways, the county concluded that it satisfied these criteria. In the fourth assignment of error, petitioners argue that the county’s conclusion is not supported by substantial evidence since only 12% of the property is developed, and that the county erred in relying on the driveways since roads are allowed under Goal 4. Intervenor argues that, because forest uses would require extensive fire buffers adjacent to residential lands and overhead power lines, the county did not err. Because the findings do not explain why the driveways were considered, and because intervenor does not quantify how much the buffers would decrease the amount of land available for forest uses, LUBA agrees with petitioners that the county’s findings are not supported by substantial evidence. The fourth assignment of error is therefore sustained, and the county’s decision is REMANDED.