Kenney v. Tillamook County

A portion of the subject property was graded, and the remainder sloped to an adjacent river. One-half of the subject property was within the 100-year floodplain and one-third was within the riparian setback. Intervenors applied for a conditional use permit (CUP) to establish a 25-unit workforce housing project on the graded portion of the subject property. The height limit in the underlying zone was 35 feet. For “bay front lots,” the height limit was 24 feet. The adjacent river made the subject property a “bay front lot.” Based on considerations including costs and aesthetics, intervenors sought a height variance from 24 feet to 27 feet 10 inches. In order to avoid development in the floodplain, intervenors sought a setback variance from 15 feet to 2 feet. The board of commissioners approved the CUP and the variances. This appeal followed.

In the first assignment of error, petitioners argued that the county misconstrued certain variance criteria and adopted inadequate findings of compliance with those criteria that were not supported by substantial evidence.

Under TCLUO 8.030(1), a variance may only be granted if “[c]ircumstances attributable either to the dimensional, topographic, or hazardous characteristics” of the property “would effectively preclude the enjoyment of a substantial property right enjoyed by the majority of landowners in the vicinity, if all applicable standards were to be met. Such circumstances may not be self-created.” Because intervenors did not impose the floodplain, riparian setback, or “bay front lot” height limit on the subject property, because they were not responsible for the prior grading, and because most of the similarly zoned properties in the vicinity did not share those limitations, the board of commissioners concluded that TCLUO 8.030(1) was met. In the first subassignment of error, petitioners argued that the county misconstrued TCLUO 8.030(1) by identifying the height limit and setback requirement themselves as the “circumstances” requiring the variances. Read in context, LUBA concluded that the findings made it clear that the topography, floodplain, and prior grading were the relevant “circumstances,” not the regulations themselves. The first subassignment of error was therefore denied.

Under TCLUO 8.030(4), a variance may only be issued if “[t]here are no reasonable alternatives requiring either a lesser or no variance.” Intervenors argued below that the setback and height variances were necessary because costs are a limiting factor with respect to workforce housing and because (1) developing in the floodplain would increase construction and ongoing insurance costs and make the development financially infeasible; (2) a one-story building would only allow for 12 to 13 units, whereas 25 units were necessary to make the project financially feasible; and (3) a flat roof would make the building less attractive, make the building fit less with the character of the community, and increase construction costs, given the climate and rainfall. For those reasons, the board of commissioners concluded that TCLUO 8.030(4) was met.

In the second subassignment of error, petitioners argued that the county misconstrued TCLUO 8.030(4) and that the fact that a single-story building or a flat roof were not intervenors’ preferences did not make those alternatives unreasonable. In deBardelaben v. Tillamook County, the Court of Appeals held that the board of commissioners could consider the purpose of a structure and the cost burden of alternatives in determining whether those alternatives are reasonable under TCLUO 8.030(4). Because the board of commissioners’ approach here was consistent with that holding, LUBA concluded that the county did not misconstrue TCLUO 8.030(4). The second subassignment of error was therefore denied.

In the third subassignment of error, petitioners argued that the county’s conclusion that TCLUO 8.030(4) was met was not supported by substantial evidence because intervenors were not qualified to testify on the economics of the project and because their analysis contained mathematical errors. Because petitioners did not challenge intervenors’ qualifications below, and because there was no indication in the record that intervenors were unqualified or that their math was incorrect, LUBA concluded that a reasonable person could have relied on their analysis. Petitioners also argued that the board of commissioners erred by failing to address evidence presented by a retired architect regarding the aesthetics of a flat roof, which was contrary to the evidence presented by intervenors. Although LUBA concluded in a prior appeal that expert evidence was necessary to rebut expert evidence regarding the impacts of higher residential densities on big game habitat in the context of Statewide Planning Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces), LUBA concluded here that expert evidence was not necessary to rebut the retired architect’s evidence regarding the aesthetics of a flat roof. It was also not clear that the retired architect was necessarily an expert on construction costs and other considerations. The third subassignment of error was therefore denied and the first assignment of error was denied.

Under TCLUO 6.040, in order for the county to grant a CUP, it must find that “[t]he parcel is suitable for the proposed use considering its size, shape, location, topography, existence of improvements and natural features.” The board of commissioners concluded that that criterion was met. In the fourth assignment of error, petitioners argued that the board of commissioners erred in concluding that the subject property was “suitable” on the one hand while finding that variances were necessary on the other. Because the findings explained that the board of commissioners interpreted the CUP “suitability” criterion and the variance “circumstances” criterion to require different analyses, and because petitioners did not establish that that interpretation was inconsistent with the express language of either provision, LUBA deferred to that interpretation under ORS 197.829(1) and Siporen v. City of Medford. The fourth assignment of error was therefore denied and the county’s decision was AFFIRMED.