Van Dyke v. Yamhill County

(1) Where the only evidence that a county will use a proposed bridge for “fire control” is an affidavit that the bridge is designed to serve large fire vehicles, and where the construction agreement describes the bridge as part of a larger recreation trail, a county errs by concluding the bridge is a “[f]ire service facilit[y]” allowed outright under ORS 215.283(1)(s), rather than a transportation facility requiring conditional use approval under a local code provision. (2) A conditional use must secure land use approval prior to construction, regardless of whether the improvements will be used for conditional use purposes until land use approval is later obtained.

In 2018, the county amended its comprehensive plan to acknowledge county ownership of a former railroad right-of-way and authorize construction of a recreation trail within a segment of the right-of-way. LUBA remanded that decision for the county to apply conditional use permit approval for sections of the trail zoned exclusive farm use (EFU). In 2019, the county approved a conditional use permit for the trail and entered a design and consulting agreement for three bridges along the trail. While LUBA dismissed appeals of the design and consulting agreement, it remanded the conditional use permit for further proceedings. In 2020, the county entered into a construction agreement for one of the trail’s bridges on land zoned EFU. These appeals followed.

Under ORS 197.825(1), LUBA has exclusive jurisdiction to review “land use decisions.” Under ORS 197.015(10)(a), a “[l]and use decision” is a local government decision that “concerns” the application of, among other things, a land use regulation. A local government decision “concerns” the application of a land use regulation if it is actually applied in making the decision or should have been applied. Because nothing in the decision approves the bridge for recreation trail uses, the county argues it was not required to secure land use approval prior to its construction. In addition, because the county intends to use the bridge for “fire control,” and because “[f]ire service facilities” are allowed outright in the EFU zone under ORS 215.283(1)(s) and Yamhill County Zoning Ordinance (YCZO) 402.02(R), the county argues the decision did not require application of any land use regulation. The county therefore moves to dismiss the appeal. Petitioners argue that, because the decision authorized construction of a “transportation facilit[y],” because such facilities are conditional uses in the EFU zone under YCZO 402.04(N), and because conditional uses must comply with YCZO 1202.02 and 402.07, which implements ORS 215.296, the decision did require application of land use regulations.

Because the only evidence that the county will use the bridge for “fire control” is an affidavit that the bridge is designed to serve large fire vehicles, because the construction agreement itself describes the bridge as part of the larger recreation trail, and because the county has not explained how the bridge otherwise qualifies as a “[f]ire service facilit[y],” LUBA concludes the bridge is not such a facility. Instead, LUBA agrees with petitioners that the bridge—by itself or as part of the larger recreation trail—is a “transportation facility” requiring conditional use approval. In addition, because the bridge is a “structure” under YCZO 202, and because YCZO 1406.02 prohibits construction of structures in violation of ORS 215 and the YCZO, LUBA concludes the bridge was required to secure land use approval prior to construction, regardless of whether it would be used for recreation trail purposes until land use approval is later obtained. Because conditional use criteria should have been applied, LUBA concludes the decision is a land use decision over which it has jurisdiction. In turn, because the county does not dispute that it did not apply conditional use criteria, the second assignment of error is sustained, and the decision is REMANDED.