York v. Clackamas County

(1) The “primary use” of property zoned RRFF-5 is the use and occupancy of a dwelling structure and does not include driving or walking. (2) Where a criterion requires a finding that something is missing, while that finding cannot be supported by the absence of evidence (i.e., no evidence that the criterion is not satisfied), it can be supported by evidence of absence (i.e., affirmative evidence that the criterion is satisfied because the relevant thing is in fact missing).

The county approved a conditional use permit (CUP) to develop a solar facility on property zoned Timber (TBR) and bordered on the north by property zoned Rural Residential Farm Forest-5 Acre Minimum (RRFF-5). This appeal followed.

Under Clackamas County Zoning and Development Ordinance (ZDO) 1203.03(D), CUPs may not substantially “limit” or “impair” the use of surrounding properties for the primary uses allowed in their zones. In approving the application, the county concluded that, to the extent the facility is visible to surrounding homes, any glare from the solar panels would be insufficient in intensity and duration to substantially “impair” residential uses. In addition, the county found that passing by the facility on the way to a residence does not “limit” residential use because driving and walking are not residential uses. In the first assignment of error, petitioners argue that, (1) because the only evidence of glare are low-resolution photographs, the county’s conclusion is not based on substantial evidence and (2) the county misconstrued the “primary uses” allowed in the RRFF-5 zone by excluding driving and walking. LUBA agrees with the county that (1) the record contains evidence upon which a reasonable person would rely to conclude that any glare would not substantially impair surrounding uses and, (2) because use and occupancy of a dwelling is the primary use of RRFF-5 property, the county did not err in excluding driving and walking. The first assignment of error is denied.

Under ZDO 406.05(A)(1) and OAR 660-006-0025(5)(b), uses in the TBR zone may not significantly increase “risks to fire suppression personnel.” While acknowledging that solar panels pose a potentially fatal risk of electrical shock, the county concluded that, because opponents produced no evidence of fire suppression personnel actually suffering injury from a solar panel fire, that risk was not significant. In the second assignment of error, petitioners argue the county’s conclusion is not supported by substantial evidence because the absence of evidence cannot support a finding that the applicant has satisfied an applicable criterion. LUBA agrees with the county that, because the county did not simply rely on the absence of evidence of injury to fire suppression personnel, but instead relied on extensive observations of fires involving solar panels which contained no evidence of such injury, the county’s conclusion was based on substantial evidence. The second assignment of error is therefore denied and the county’s decision is AFFIRMED.