Oregon Coast Alliance et al v. Clatsop County

1) Where the hearings officer fails to address adequately suitability issues raised during the petition for review, as required under LAWDUC 2.4030(3)(c), LUBA will remand in order to adopt findings on the issue. 2) Where the local government's interpretation of the purpose of its comprehensive land use regulations is entirely consistent with the regulatory action taken, LUBA shall affirm the regulatory action. ORS 197.829(1).

Petitioners appealed the County’s decision to approve a conditional use permit for the construction of an access road within an unimproved public right-of-way. Intervenors own multiple lots within the Arch Cape Rural Community Residential Area (AC-RCR). Intervenor Smith filed a permit application to improve 150 feet of an unimproved access road to provide developed access to his lots. Included in the application was a wetland delineation, which indicated that most of Smith’s lots and significant portions of the road consist of wetlands. The county planning director approved the application, subject to a condition recommended by the county public works department that the improvements of the road extend an additional 40 feet to accommodate a turnaround. Petitioners appealed the director’s approval. The hearings officer denied the appeals and approved the application. Petitioners again appealed. The board of commissioners declined to review the decision and instead adopted the hearings officer’s decision as its own. Petitioners then appealed to LUBA.

Clatsop County Land and Water Development and Use Code (LAWDUC) 2.4030(3)(c) requires a finding that the “site under consideration is suitable for the proposed use considering . . . [t]he natural and physical features of the site such as topography, natural hazards, natural resource values and other features.”

In their first assignment of error, Petitioners argued that the hearings officer failed to adopt any of their own findings subject to LAWDUC 2.4030(3)(c), despite issues raised on appeal about the suitability of the site. Petitioners argued that suitability concerns had been raised about the presence of wetlands, seasonal flooding, and possible impacts on elk. ORS 197.797(1) requires “fair notice” of the issues raised during petition for review, else the right to appeal those issues will be waived. In their decision, the hearings officer explained that they adopted findings to address the criteria and issues raised during the hearing process. The hearings officer did not understand Petitioners to have raised an issue of LAWDUC’s suitability standard and instead relied on staff findings to address the standard. LUBA found that fair notice of the suitability standard was raised during the initial petition for review when Petitioners discussed LAWDUC 2.4030(3)(c)(4) in the context development of the delineated wetlands. Moreover, LUBA understood Petitioners to have raised the issue of seasonal flooding, despite the fact that they had not cited or connected the testimony to LAWDUC(3)(c)(4). Sufficient fair notice of the issue of the herd of elk was not made, however, and that issue was waived.

Petitioners then argued that the hearings officer erred in not offering more adequate findings to rectify the apparent a contradiction in the staff report, finding Smith needed to abide by county permit #21-02, requiring him to “[s]tay out of delineated wetlands” and, simultaneously, finding that the conditional 40-foot extension required by the public works department for the turnaround, “may impact a portion of an identified wetland within the right of way.” LUBA agreed, holding that the staff findings implicitly acknowledged that the wetlands in the right-of-way were one of the natural and physical features necessary to consider in determining whether the site was “suitable” for the proposed development. As such, more adequate explanatory findings were needed to establish compliance with the suitability standard of LAWDUC 2.4030(3)(c)(4).

Petitioners further argued that the hearings officer’s findings failed to address the suitability of the site in terms of seasonal flooding. Intervenors responded that there was no evidence in the record that the proposed development was located within a designated floodplain. Nonetheless, Intervenors did not dispute that if seasonal flooding were to occur on the site, it may have a bearing on whether the site is “suitable” for the proposed uses. LUBA observed that there was testimony in the record that flooding occurs on the site and that the flooding may get worse if a portion of the wetland is filled for road construction. LUBA held that whether the property is located within the floodplain is not dispositive of whether the proposed use is suitable, and that the hearings officer’s failure to address the issue of flooding requires a remand to adopt findings on the issue.

LUBA sustained the first assignment of error in part.

ORS 197.829(1) provides: "[LUBA] shall affirm a local government's interpretation of its comprehensive plan and land use regulations, unless the board determines that the local government’s interpretation: [i]s inconsistent with the express language of the comprehensive plan or land use regulation; [i]s inconsistent with the purpose for the comprehensive plan or land use regulation; or [i]s inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation[.]"

In their second assignment of error, Petitioners argued that approval of the road development, without consideration of the development to be supported by the road, runs counter to LAWDUC’s purpose provisions. LAWDUC 3.9810(1), stipulates that the purpose of the county's road and access policies are to "provide access to new development in a manner which reduces construction cost, makes efficient use of land, allows emergency vehicle access while discouraging inappropriate traffic volumes and speeds, and which accommodates convenient pedestrian and bicycle circulation." In rejecting this argument, the hearings officer determined that the LAWDUC 3.9810(1) does not include approval criterion, nor is the authorized road improvement necessarily inconsistent with the purpose of the regulation, as it is required not to be under ORS 197.829(1). LUBA agreed. As a result, LUBA affirmed the County's interpretation, denying the second assignment of error.

Remanded.