1000 Friends of Oregon v. Linn County

Where local code provisions provide that the potential impact of development on sensitive habitat be assessed “on planning permit applications for . . . zone and plan amendments,” or that “[l]and use proposals . . . that have undesirable impacts on [sensitive fish and wildlife habitats] shall be reviewed during the plan amendment[ and] zone amendment . . . process,” a local government errs by deferring that assessment and review until the development phase.

The subject property is planned and zoned Farm/Forest (F/F) and included on the county’s map of big game habitat. Intervenors applied to change the plan designation to Non-Resource (NR) and the zoning to Non-Resource 5-acre minimum (NR-5). The county approved the application and this appeal followed.

Statewide Planning Goal 5 is “[t]o protect natural resources and conserve scenic and historic areas and open spaces.” Under Goal 5, local governments must inventory “[w]ildlife [h]abitat” and develop a program to achieve the goal (PTAG). The county’s PTAG is codified at Linn County Code (LCC) 903.500-.550. Under 903.510(B)(3), big game habitat is “protected from most conflicting uses through application of the Forest conservation and Management (FCM), Exclusive Farm Use (EFU), and Farm/Forest (F/F) zones.” Under LCC 903.550(A)(1), the “Agricultural Resource, Forest Resource, and Farm/Forest plan designations shall be used . . . to conserve sensitive fish and wildlife habitats.”

In the first assignment of error, petitioners argue the county improperly construed LCC 903.510(B)(3) and 903.550(A)(1) in applying the NR plan designation and NR-5 zone to the subject property, since those provisions require resource planning and zoning for property mapped big game habitat. Intervenors respond that the county correctly interpreted those provisions to conclude that protection of sensitive fish and wildlife habitats is implemented during the development phase rather than the plan or zone change phase. LUBA agrees with petitioners that the county’s interpretation is inconsistent with the express language of 903.510(B)(3), which requires the potential impact on sensitive habitats to be assessed “on planning permit applications for . . . zone and plan amendments,” and of LCC 903.550(A)(1), which provides that “[l]and use proposals . . . that have undesirable impacts on [sensitive fish and wildlife habitats] shall be reviewed during the plan amendment, zone amendment, and conditional use permit process.” The first assignment of error is therefore sustained. Under OAR 661-010-0071(1)(c), LUBA will reverse a land use decision when it “is prohibited as a matter of law.” Because changing the plan designation and zone of property mapped big game habitat to NR and NR-5 is prohibited as a matter of law, the county’s decision is REVERSED.