KB Trees, LLC v. Washington County

Where a local government concludes that a condition of approval is sufficient to ensure compliance with applicable approval criteria, the fact that the findings reject an alternative condition based on arguably irrelevant considerations provides no basis for reversal or remand where the petitioner does not establish that the imposed condition is in fact not sufficient to ensure compliance with applicable approval criteria.

Intervenor applied for preliminary review of a subdivision and re-plat that involved filling a wetland. Under ORS 196.810(1)(a), filling wetlands requires a permit from the Department of State Lands (DSL). Under Resolution and Order No. 19-5, Clean Water Services (CWS) is required to approve storm drainage and erosion control plans. During the local proceedings, planning staff recommended that the county impose a condition requiring intervenor to obtain a DSL permit, and provide copies of the permit to CWS so that CWS could approve intervenor’s erosion control plan, prior to any grading or construction impacting the wetland. Petitioner requested that the county revise the condition to prevent any grading or construction impacting the wetland until after any appeals of the DSL permit had been resolved. Concluding the result of any such appeals was not within the scope of its decision, and noting that the revised condition would effectively act to stay the DSL permit, the county declined to revise the condition as requested. This appeal followed.

Under Washington County Development Code (CDC) 207-5.1, the county “may impose conditions . . . designed to protect the public from potential adverse impacts of the proposed use or development.” In their assignment of error, petitioners argue that (1) the county improperly construed CDC 207-5.1 in concluding it lacked authority to revise the condition as requested, (2) under CDC 207-5.1, the county was required to revise the condition as requested in order to “protect the public from potential adverse impacts of the proposed use” and, (3) the county’s findings are inadequate because it is irrelevant whether the revised condition would effectively stay the DSL permit.

Because LUBA has no jurisdiction over appeals of DSL permits or CWS approvals, respondents move to dismiss the appeal. Because, under ORS 197.835(9)(a)(D), LUBA may reverse or remand land use decisions if the local government “improperly construed the applicable law,” and because petitioners argue the county improperly construed CDC 207-5.1, LUBA agrees with petitioners that it has jurisdiction over the appeal. The motion is therefore denied.

On the merits, however, LUBA agrees with respondents that, because the county concluded the unrevised condition was sufficient to satisfy Resolution and Order No. 19-5, because the county’s musings that the revised condition would stay the DSL permit did not undercut that conclusion, because petitioners have not established that the unrevised condition fails to protect the public, and because CDC 207-5.1 provides merely that the county “may” impose conditions and not that it must do so simply because an opponent proposes one, the assignment of error is denied and the county’s decision is AFFIRMED.