Landwatch Lane County v. Lane County

Intervenor applied for a forest template dwelling on property zoned Impacted Forest Lands (F-2) within major big game range, an inventoried Statewide Planning Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces) resource. Under Lane County Rural Comprehensive Plan (RCP) Goal 5, Flora and Fauna Policy 11, “Oregon Department of Fish and Wildlife [(ODFW)] recommendations on overall residential density for protection of big game shall be used to determine the allowable number of residential units within regions of the County. Any density above that limit shall be considered a conflict with Goal 5 and will be allowed only after resolution in accordance with OAR 660-16-000.” Because the subject property was 10 acres, meaning that its density with a dwelling would have been 1 dwelling per 10 acres, and because a background document to the comprehensive plan known as the Flora and Fauna Working Paper indicated that ODFW recommended 1 dwelling per 80 acres in major big game range, petitioners argued that the county was required to apply OAR 660-016-0000. Relying on a staff report prepared by the Department of Land Conservation and Development during the acknowledgment process, the Flora and Fauna Working Paper, and testimony from former county planners, the hearings officer concluded that Policy 11 had been implemented by minimum lot sizes in the F-2 zone, that it applied directly only to land divisions and zone changes, and that it did not apply directly to dwelling applications on existing parcels. The hearings officer therefore approved the application. This appeal followed.

In the first assignment of error, petitioners argued that the hearings officer misconstrued Policy 11. Because neither the text nor context of Policy 11 indicated that it applied only to zone changes and land divisions; because applications for zone changes and land divisions usually do not propose development, making it difficult to see how Policy 11 would apply to those applications; and because the F-2 zone’s minimum lot sizes do not themselves limit residential density in the F-2 zone, LUBA agreed with petitioners that the county misconstrued Policy 11. Instead, LUBA interpreted Policy 11 to require the county to divide the county into regions and impose residential density standards consistent with ODFW recommendations in zoning those regions. Although the county had not done that, LUBA concluded that ODFW’s density recommendations apply directly to residential development in big game habitat through Policy 11. Because the density of the subject property with a dwelling would have exceeded ODFW’s recommendation, LUBA concluded that the county was required but failed to apply OAR 660-016-0000. The first assignment of error was therefore sustained.

Under RCP Goal 7, Policy 3, “[w]hen extensive or drastic safeguards must be employed in conjunction with development proposals, the immediate and ultimate impact * * * of such safeguards on the environment and the public shall be considered.” Because the subject property had steep slopes, intervenor submitted a geotechnical report with their application. Because the geotechnical report suggested that a more comprehensive report be completed through the building permit process, the hearings official imposed a condition of approval requiring the building official to review intervenor’s second report and identify any problems, which would trigger additional review by the hearings officer. In the second assignment of error, petitioner argued that the hearings officer erred by deferring application of Policy 3 to the second report. Although second-stage proceedings are generally allowed where a decision-maker cannot determine compliance with an approval criterion during a first-stage proceeding, they must provide for public participation. Because the hearings officer’s condition left review of the second report and the determination of whether problems existed to the sole discretion of the building official, LUBA agreed with petitioner that the hearings officer erred by deferring application of Policy 3. The second assignment of error was therefore sustained.

Under ORS 215.750(5)(d), forest template dwellings are only allowed if they are part of a tract that does not already contain a dwelling. Under ORS 215.010(2), a “tract” is “one or more contiguous lots or parcels under the same ownership.” Intervenor was a company. In the third assignment of error, petitioner argued that, because a property adjacent to the subject property, which contained a dwelling, was owned by registered agents and members of intervenor, the subject property was part of a tract that already contained a dwelling and the decision therefore violated ORS 215.750(5)(d). LUBA concluded that the properties were not “under the same ownership” for purposes of ORS 215.010(2). The third assignment of error was therefore denied, and the county’s decision was REMANDED.