Jones v. Clackamas County

(1) Where a local code provision requires individualized notice to property owners only when an application “relates to . . . a specific property,” the fact that the application referred to a proposed use at a specific street address, that the owner of that specific property signed the application, and that the application had a causal connection with and was the impetus for the local government’s decision is sufficient to establish that the application “relates to . . . a specific property” and that individualized notice was required, even where the local government’s decision applies to all property in a particular zone and does not examine any particular development proposal or the characteristics of any individual property. (2) Where a local code provision precludes a local government from processing an application “if the specific question raised . . . has already been decided through another land use permit application,” a local government does not err by processing an application for a similar use determination even though it previously denied a conditional use permit with which the similar use determination has some features in common.

Under the Clackamas County Zoning Ordinance (CCZO) Table 316-1, Recreational Uses are conditionally allowed in the Rural Residential Farm Forest 5 (RRFF-5) zone. Under CCZO 106.01(C), uses similar to listed conditional uses may themselves be authorized as conditional uses. Under CCZO 106.02, such similar use determinations must be reviewed as interpretations under CCZO 1308. Intervenor applied for an interpretation that artificial turf sports fields, basketball and volleyball courts, indoor futsal training facilities, team rooms, concessions, jogging/walking paths, playgrounds, picnic areas, storage, operational buildings for indoor athletic training, classroom space, related offices, and amphitheaters are similar to Recreational Uses. Under CCZO 1308.02(C), notice of interpretations must be mailed to “all active community planning organizations” [CPOs] among other entities. Under CCZO 1308.02(D), property owners are only entitled to individualized notice of an interpretation if it “relates to . . . a specific property.” While the county sent notice of intervenor’s application to CPOs, it did not send individualized notice to property owners, including petitioners. The county approved the application in part and this appeal followed.

In the first assignment of error, petitioners argue the county committed procedural error that prejudiced their substantial rights in failing to provide them with individualized notice, which deprived them of their right to participate in a public hearing. Respondents argue that, because the county’s decision applies to all RRFF-5 properties, and because it did not examine any particular development proposal or the characteristics of any individual property, it did not “relate[] to . . . a specific property” and petitioners were therefore not entitled to individualized notice. LUBA agrees with petitioners that, because intervenor’s application referred to a proposed use at a specific street address, because the owner of that specific property signed the application, and because the application had a causal connection with and was the impetus for the county’s decision, the application did in fact relate to a specific property and therefore required individualized notice, despite the fact that the decision did not discuss the specific property identified in the application. Remand is therefore necessary to provide petitioners an opportunity to participate in the local proceeding, and the first assignment of error is sustained.

In 2016, the county rejected a conditional use application to construct artificial turf soccer fields with bleachers, an arena field, and a challenge course and court as a Recreational Use on RRFF-5 property for sports, concerts, picnics, car shows, festivals, outdoor movies, parties, and other gatherings. Under CCZO 1308.02(E), interpretations are “precluded if the specific question raised . . . has already been decided through another land use permit application.” In the third assignment of error, petitioners argue that, due to the 2016 decision, the county is precluded from processing intervenor’s similar use application. LUBA agrees with respondents that, while the 2016 proposal had some features in common with intervenor’s proposal, it was not an identical use. In addition, even if it were, the 2016 decision concluded merely that the proposal was not itself a Recreational Use and, while the county expressed doubts that the use could be authorized as a similar use, it specifically recognized that the applicant had not applied for such a determination. Because the intervenor in this case did apply for a similar use determination, LUBA concludes the “specific question raised” in their application was not decided in the 2016 decision and that the county was therefore not prohibited from processing it. The third assignment of error is denied, and the county’s decision is REMANDED.