Hendrickson v. Lane County

Counties may not subject temporary hardship dwellings to local criteria that are more restrictive than state statute. Brentmar v. Jackson County, 321 Or 481 (1995); Lane County v. LCDC, 325 Or 569 (1997).

Petitioner applied for approval of a temporary hardship dwelling for a 5-acre property zoned Exclusive Farm Use 40-acre minimum (E-40), designated as Major Big Game Range, and developed with a single-family dwelling. The application was approved, denied on appeal, and denied again upon reconsideration on the grounds that it violated Flora and Fauna Policy 11 (Policy 11), a county comprehensive plan policy concerning big game habitat. Petitioner then filed this appeal.

Policy 11 provides that “Oregon Department of Fish and Wildlife recommendations on overall residential density for protection of big game [(one dwelling per 80 acres in Major Big Game Range)] shall be used to determine the allowable number of residential units within regions of the County. Any density above that limit shall be considered to conflict with Goal 5[.]”

ORS 215.213(1)(i) provides as allowable uses in EFU zones in marginal lands counties: “one manufactured dwelling or recreational vehicle, or the temporary residential use of an existing building, in conjunction with an existing dwelling as a temporary use for the term of a hardship suffered by the existing resident or a relative of the resident.”

Petitioner argued that the hearings official erred in applying Policy 11 to the application, improperly construing the applicable law. Petitioner argued Policy 11 is a local criterion that is more restrictive than ORS 215.213(1)(i) and may not be applied. Counties may not subject temporary hardship dwellings to local criteria that are more restrictive than state statute. Brentmar v. Jackson County, 321 Or 481 (1995); Lane County v. LCDC, 325 Or 569 (1997). LUBA disagreed with Intervenor’s argument that LCDC’s acknowledgement of Policy 11’s compliance with Rural Comprehensive Plan Goal 5 equated to LCDC adopting Policy 11 itself, finding that it was undisputedly adopted by the County, not LCDC. LUBA also noted that the fact LCDC adopted additional criteria for temporary hardship dwellings does not authorize counties to subject those uses to unspecified other standards such as Policy 11. LUBA reasoned that because Policy 11 is a local criterion that is more restrictive than ORS 215.213(1)(i), the hearings official applied it in contravention of Brentmar and Lane County. Accordingly, LUBA held that the hearings official erred in denying Petitioner’s application. Reversed.