Coates v. Columbia County

The county approved a conditional use permit (CUP) for a home occupation to allow the applicant to smoke meats on residentially zoned land. This appeal followed.

Under Columbia County Zoning Ordinance (CCZO) 1503.5(G), proposed conditional uses must not “create any hazardous conditions.” Petitioner and intervenor testified below that they were concerned that the proposal would create odors and smoke. The applicant testified that they would use a combustor to reduce odors and smoke and that their smoking equipment might be similar to a specific local restaurant. A planning commissioner commented that they had not personally smelled offensive odors near that restaurant. Due to the chemicals to be used in the applicant’s proposal, the lack of concerns from the building official, and the fact that the proposal would require county sanitarian review, the county concluded that CCZO) 1503.5(G) was met. LUBA agreed with intervenor that, absent more information about the type of combustor to be used, the county’s conclusion that there would be no hazardous conditions was not supported by substantial evidence—that is, evidence upon which a reasonable person would rely to reach that conclusion.

Under CCZO 1507.3, proposed home occupations must not “unreasonably interfere with other uses permitted in the zone.” The county concluded that this criterion would be met because the applicant would be required to obtain a license from the Oregon Department of Agriculture (ODA), because on-site signs would be prohibited, because sales would be by mail, and because an expansion of the operation to include employees would require additional county approval. Because the findings did not explain the significance of an ODA license, and because they identified no evidence regarding odors or smoke, LUBA agreed with intervenor that the county’s conclusion that there would be no unreasonable interference was not supported by substantial evidence.

Under CCZO 1503.5(D), proposed conditional uses must be “timely, considering the adequacy of transportation systems, public facilities, and services existing or planned for the area.” The county found that the fire department had reviewed the application and had no objection to its approval. Although the fire chief signed the application, petitioner argued that the county’s conclusion that this criterion was met was not supported by substantial evidence because that signature could simply have meant that emergency access was available. LUBA concluded that the fire chief’s confirmation that emergency access was available constituted substantial evidence that CCZO 1503.5(D) was met.

Under CCZO 1503.5(E), proposed conditional uses must not “alter the character of the surrounding area in a manner which substantially limits, impairs, or precludes the use of surrounding properties for the primary uses listed in the underlying district.” The county concluded that this criterion would be met because the applicant would have no employees, signage, or customers on the subject property; would advertise and conduct all business transactions electronically and by mail; would be required to obtain all necessary permits; would develop a wastewater management plan; and would have their septic system reviewed by the county sanitarian. Because there was no evidence regarding odors or smoke, LUBA agreed with petitioner and intervenor that the county’s conclusion that the proposed conditional use would not alter the character of the surrounding area was not supported by substantial evidence.

Due to the COVID-19 pandemic, the county held a virtual public hearing. Petitioner argued that, due to technical difficulties, they did not hear the announcement at the beginning of the hearing that they could request that the hearing be continued or that the record be left open. Petitioner also argued that, due to a 5-minute time limit for testimony, petitioner’s testimony was truncated. Petitioner argued that intervenor requested an opportunity to provide additional testimony, which was denied, but that the applicant was able to provide additional testimony. Because petitioner did not request an opportunity to provide additional testimony themselves; because parties cannot make claims of prejudice due to procedural errors on behalf of others, including other parties such as intervenor; because petitioner did not identify the evidence that the applicant was able to submit into the record after the record was closed; and because petitioner did not identify what responsive evidence they would have submitted if given the opportunity, LUBA concluded that petitioner’s procedural arguments provided no basis for reversal or remand. Due to the above errors, the county’s decision was REMANDED.