O’Connor v. Clackamas County

While the doctrine of issue preclusion does not generally apply to issues decided by local governments, a local government does not err in applying it to issues decided by federal courts.

Under Clackamas County Zoning and Development Ordinance (ZDO) 703.04, the county’s Floodplain Management District (FMD) applies to the Special Flood Hazard Area (SFHA) identified by a Flood Insurance Study (FIS) and Flood Insurance Rate Maps (FIRMs) prepared by the Federal Emergency Management Administration (FEMA). The SFHA is divided into subareas, including the floodway and other parts of the floodplain. Under ZDO section 703, while development in the FMD generally requires a floodplain permit, development in the floodway is categorically prohibited. Petitioners applied to construct dwellings on two properties. Although the properties are located in the floodway, petitioners argued floodplain development permits were not necessary because the footprints of the proposed dwellings were above the base flood elevation (BFE) and therefore not within the floodway, SFHA, or FMD. Planning staff responded that, even if the footprints of the proposed dwellings were above the BFE, the properties themselves were still identified on the FIS and FIRMs and could only be removed through a Letter of Map Amendment (LOMA) from FEMA. Alternatively, planning staff responded that petitioners’ elevation certificates were wrong. Concluding these issues had been decided adversely to petitioners in prior federal litigation concerning the same two properties, the county denied the applications on the basis of issue preclusion. This appeal followed.

In the first assignment of error, petitioners argue that (1) the county improperly construed applicable law in concluding the federal litigation had preclusive effect and (2) issue preclusion is contrary to Oregon land use law. While LUBA has held that issue preclusion does not generally apply in local land use hearings, LUBA agrees with the county that that is only true for issues decided by the local government, not issues decided by state and federal courts. Furthermore, because the issues of (1) whether the county can remove property from the floodway, SFHA, or FMD without a LOMA and, (2) if so, whether petitioners’ properties should be removed were in fact decided in the federal litigation, the first assignment of error is denied and the county’s decision is AFFIRMED.