Jones v. Clackamas County

(1) A local government errs in relying on a later enacted local code provision to interpret the effect of a previous quasi-judicial decision. (2) In making a statutory permit decision under ORS 215.416(8)(a), a local government errs in basing its decision on a previous quasi-judicial decision that has not been adopted by ordinance or regulation.

Intervenor applied for a conditional use permit (CUP) to construct a sports facility on property zoned Rural Residential Farm Forest 5 (RRFF-5). Under Clackamas County Zoning Ordinance (CCZO) 1203.03(A), conditional uses must “[be] listed as a conditional use in the zoning district in which the subject property is located.” In a 2017 decision, the county determined that, while portions of the sports facility were not listed as conditional uses in the RRFF-5 zone, they were similar to Recreational Uses, which are listed as conditional uses in the RRFF-5 zone, and that the sports facility was therefore also allowed as a conditional use in the RRFF-5 zone under CCZO Table 316-1. Under CCZO 106.01(B), which was adopted after the 2017 decision, “authorization of a similar use is applicable to all land in the zoning district for which the request was made.” The county concluded the interaction between CCZO 106.01(B) and the 2017 decision required it to conclude the sports facility was “listed as a conditional use” in the RRFF-5 zone, as required by CCZO 1203.03(A). The county therefore did not independently evaluate whether the sports facility was in fact similar to Recreational Uses. Upon concluding other applicable criteria were met, the county approved the CUP and this appeal followed.

In the first assignment of error, petitioners argue the county erred in relying on CCZO 106.01(B) to conclude the 2017 decision “essentially amended” the CCZO. Because CCZO 106.01(B) was not in effect in 2017, LUBA agrees with petitioners that that provision cannot be used as a tool to recast the 2017 decision as one of county-wide applicability. Under ORS 215.416(8)(a), “[a]pproval or denial of a permit application shall be based on standards and criteria which shall be set forth in the zoning ordinance.” Thus, LUBA also agrees with petitioners that the county was not bound by the 2017 decision, since that decision was not a “standard[]” or “criteri[on]” in the CCZO but rather an interpretation of the CCZO.

Under CCZO 1203.03, conditional uses may not “alter the character of the surrounding area in a manner that substantially limits, impairs or precludes the use of surrounding properties for the primary use allowed in the zoning district(s) in which [they] are located.” In the second and third assignments of error, petitioners argue the county’s findings fail to adequately address traffic and noise issues. Because the findings identify the relevant criteria, facts, and the county’s reasoning; because the county merely found that intervenor’s traffic impact analysis and sound expert were more persuasive than petitioners’ “anecdotal objections” and “degreed engineer”; and because either intervenor’s sources or the county responded to petitioners’ specific challenges, LUBA agrees with respondents that the findings are adequate. The second and third assignments of error are therefore denied, and the county’s decision is REMANDED.

Board Member Ryan concurred with the resolution of the appeal, but wrote separately to emphasize that, even if the county could rely on CCZO 106.01(B) in this case, the position that a prior similar use determination effectively lists the similar use as a conditional use such that it may not be challenged by participants in subsequent CUP proceedings is inconsistent with Oregon’s land use laws because similar use determinations do not comply with the procedures for post-acknowledgment plan amendments under ORS 197.610 to .625, and because the county’s similar use determination procedures provide for little or no notice to persons who may be interested in decisions of county-wide applicability.