Landwatch Lane County v. Lane County

(1) Where a local code provision implementing OAR 660-006-0029, which in turn implements Goal 4, requires a county to site forest dwellings by “weigh[ing] together” a number of siting factors with various fire-safety design standards, a local government does not err by failing to treat each factor as a stand-alone criterion. (2) Where a local code provision requires that “[t]he amount of forest lands used to site access roads . . . be minimized,” and where a local government concludes that an access road complies with that provision without interpreting the term “minimized” or providing an analysis of alternatives or an explanation of why better alternatives do not exist, LUBA will remand for the local government to adopt an adequate interpretation and adequate findings. (3) Where a local code provision does not expressly require expert testimony to establish compliance, and where the record contains no expert testimony demonstrating a lack of compliance, a local government does not err by relying on lay testimony with personal knowledge in determining compliance.

Intervenor applied to site a forest template dwelling on the subject property. Under Lane Code (LC) 16.211(8), the county must site forest dwellings by “weigh[ing] together” a number of siting factors designed to minimize the amount of forest land used with various fire-safety design standards. Under LC 16.211(8)(b), “[t]he amount of forest lands used to site access roads . . . shall be minimized.” Petitioner argued the dwelling should be accessed from the west by extending an existing road. Because the local fire district preferred access from the east, and because lay testimony suggested it would be impractical to extend the road from the west so as to satisfy fire-safety road design standards, the county approved access from the east requiring construction of a 300-foot driveway. In doing so, the county did not compare the amount of forest land that it would take to extend the road from the west with that needed to construct the driveway from the east. This appeal followed.

In the first assignment of error, petitioner argues the county misconstrued LC 16.211(8)(b). Specifically, because that provision requires that the amount of forest lands used to site access roads be “minimized,” petitioner argues the county erred in considering fire department preferences, construction costs, and practicability. LUBA agrees with intervenor that LC 16.211(8)(b) is not a stand-alone criterion but rather one of many factors that must be weighed together, and that the county may consider fire district preferences and whether alternative access roads can be improved to fire-safety specifications. However, because the county did not interpret the term “minimized” or explain how access from the east would minimize the amount of forest lands used, by providing an analysis of alternatives or an explanation of why better alternatives do not exist, LUBA agrees with petitioner that remand is necessary for the county to adopt an adequate interpretation of LC 16.211(8)(b) and adequate findings.

In addition, petitioner argues the county erred in relying on lay testimony that it would be impracticable to extend the road from the west. While LUBA has held that certain questions require some level of expertise to answer, and that lay testimony may not constitute substantial evidence where expert testimony in the record contradicts it, LUBA concludes that a reasonable person would rely on lay testimony with personal knowledge regarding the practicability of extending the road from the west, and that it was therefore substantial. The first assignment of error is sustained in part, and the county’s decision is REMANDED.