Jacobus et. al. v. Klamath

Development rights conferred by an authorization under section 6 of Measure 49 are not subject to “a land use regulation enacted by the state or county that has the effect of prohibiting the partition or subdivision, or the dwelling.” Measure 49, § 6(8).

Petitioners’ consolidated appeals concerned an ordinance approving a Goal 4 exception and establishing a limited use overlay to allow a wastewater treatment facility, lagoon storage of effluent, and land application of effluent. They appealed an order from the board of commissioners approving a conditional use permit and directing the planning director to draft an ordinance authorizing the use, as well as the board’s decision adopting the ordinance authorizing the use. 

OAR 660-004-0020(2)(c) provides for a reasons exception where “the long-term environmental, economic, social and energy [(ESEE)] consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site.” In their first assignment of error, Petitioners argued that the board erred in approving a reasons exception because approval was based on inadequate ESEE findings. Findings must address and respond to specific issues relevant to compliance with applicable approval standards that were raised in proceedings below. Norvell v. Portland Metropolitan Area, ETC., 43 Or App 849, 853 (1979). In their first subassignment of error, Petitioners contended that the findings failed to adequately address potential impacts on elk and their habitat because they did not explain how interior fencing to exclude elk from lagoons can be reconciled with the Mitigation Plan’s conclusion that there is no loss of habitat. Petitioners’ second subassignment of error concerning social impacts related to mosquitos, odors, and project screening was denied because trees interior to the site could be removed to allow wind wave action to prevent stagnation while still allowing screening trees at the edge of the site. Petitioners’ third subassignment of error, that the findings fail to address social impacts regarding potential pond freezing and odor during the subsequent thawing, was sustained because evidence cited by the city was insufficient to support a conclusion that the freeze-thaw cycle would not create an offensive odor and social consequences. LUBA sustained Petitioner’s first assignment in part. 

Klamath County Development Code (CDC) 55.035(D)(1) provides that a site slated for a conditional use in the Forest zone must be “suitable for the proposed use considering its size, shape, location, topography, existence of improvements and natural features.” In their second assignment of error, Petitioners argued that the board’s findings as to the suitability of the property were inadequate. Because findings related to potential impacts related to odor and elk habitat were inadequate, LUBA concluded that the findings also failed to adequately address the suitability of the subject property. LUBA sustained Petitioner’s second assignment of error in part.

CDC 57.0660(B) requires that “the proposed development [] not result in the loss of habitat for [identified] threatened or endangered species of animals or plants.” In their third assignment of error, Petitioners argued that the board’s findings concerning habitat impact to identified species were inadequate. Because the findings did not explain nor identify evidence supporting the conclusion that implementation of the Mitigation Plan, which is limited to a review of elk habitat, will result in no net loss in habitat for other species of animals or plants, LUBA agreed that they were inadequate. LUBA sustained Petitioners’ third assignment of error. 

CDC 48.030(B)(2) provides that a proposed change in comprehensive plan designation must be consistent with the comprehensive plan. In their fourth assignment of error, Petitioners argued that the board's findings were inadequate as to the application’s consistency with the County’s comprehensive plan Goal 5, Policy 12 (protecting significant big game winter ranges and other significant wildlife habitat). Because the board relied upon the Mitigation Plan to establish consistency and for reasons set out in LUBA’s resolution of Petitioner’s first and third assignment of error, LUBA concluded that the findings were inadequate. LUBA sustained Petitioner’s fourth assignment of error.

CDC 47.030(B)(4) requires that “the proposed change of Zone designation will have no significant adverse effect on the appropriate use and development of adjacent properties.” In their fifth assignment of error, Petitioners argued that the board’s findings regarding this provision were inadequate as they relate to odor because there was no specific condition of approval requiring monitoring and treatment. Because LUBA previously concluded that the issue of odor due to thawing was not adequately addressed in the findings, LUBA agreed with Petitioners’ argument. The fifth assignment of error was sustained in part. 

CDC 47.030(B)(5) requires that a proposed zone change be “supported by specific studies or other factual information, which documents the need for change.” In their sixth assignment of error, Petitioners argued that while cost was a consideration in the city’s selection of the project design and in the board’s  findings, the estimated project cost did not incorporate the cost to dredge the lagoons. LUBA required the board to address the cost of lagoon dredging if the cost is relied upon as evidence of need for the proposed zone change on remand. LUBA sustained Petitioner’s sixth assignment of error. Remanded.