1000 Friends of Oregon et al v. Josephine Cnty.

1) Where a plan amendment is proposed, OAR 660-006-0010 requires hierarchal analysis of specified data sources before proceeding to alternative means of determining forest land productivity. 2) OAR 660-004-0040 does not apply to nonresource land; findings as to a Goal 14 exception must “identify the relevant criteria, the evidence relied upon, and why the evidence supports the conclusion that the criteria are or are not met,” Heiller v. Josephine County, 23 Or LUBA 551 (1992); and if a plan amendment could result in residential densities inconsistent with Goal 14 an exception must be taken, Wood v. Crook County, 49 Or LUBA 682 (2005).

Intervenor-Respondent applied to the County to change an undeveloped, 87-acre property’s comprehensive plan designation from Forest to Residential and its zoning from Woodlot to Rural Residential in order to subdivide the property into rural residential lots no less than five acres. The County approved the application. Petitioners appealed the decision, insisting on the property’s continued designation as Goal 4 (Forest Lands) "resource" land and arguing that proposed changes do not comply with Goal 14 (Urbanization).

Petitioners first assigned error to the County’s designation of the property as non-forest, nonresource land. Petitioners argued, and LUBA agreed, that in reaching its determination the County relied on an analysis which did not follow the regulatorily prescribed methodology for identifying forest land. Where a plan amendment is proposed, OAR 660-006-0010 requires hierarchal analysis of specified data sources before proceeding to alternative means of determining forest land productivity. Because the record did not show the specified data sources to be unavailable or inaccurate, it was inappropriate for the County to go on to consider other means of determining productivity. The first assignment of error is sustained in part.

Next, Petitioners argued the proposed changes violated Goal 14 which generally prohibits urban uses of rural lands unless an exception can be justified. 1000 Friends of Oregon v. LCDC, 301 Or 447 (1986). 

In the first subassignment of error Petitioners argued that, if the property is nonresource land, the County erred in concluding that a five-acre minimum parcel size was consistent with Goal 14 based on OAR 660-004-0040(6)(b). The rule provides that a “rural residential zone does not comply with Goal 14 if that zone allows the creation of any new lots or parcels smaller than two acres.” The County concluded that because the minimum parcel would be five acres, the proposed changes complied with Goal 14. LUBA sided with Petitioners, explaining that zoning for lots larger than two acres is not per se consistent with Goal 14 because OAR 660-004-0040 applies only to “lands that are not within the urban growth boundary, that are planned and zoned primarily for residential uses, and for which an exception to Goal 3, or Goal 4, or both has been taken,” and does not apply to nonresource land. The first subassignment is sustained.

In the second subassignment of error Petitioners argued that, if the property is nonresource land and an exception to Goal 4 is not required, then the County erred by not considering factors outlined in 1000 Friends of Oregon v. LCDC, 301 Or 447 (1986) to determine if a Goal 14 exception is required. Factors include lot size, density, proximity to urban growth boundaries, and services needed for residential development. LUBA agreed with Petitioners that, despite the County’s statements that the property “is well outside the Grants Pass Urban Growth Boundary, and no urban services or infrastructure would be required,” the findings are inadequate because the “bare facts” do not “identify the relevant criteria, the evidence relied upon, and why the evidence supports the conclusion that the criteria are or are not met.” Heiller v. Josephine County, 23 Or LUBA 551 (1992). The second subassignment is sustained.

In the third subassignment of error, Petitioners argued that the County’s acknowledgement that planned unit developments (PUDs) would be made possible by the proposed redesignation was evidence of urban use. If a plan amendment could result in residential densities inconsistent with Goal 14 an exception must be taken. Wood v. Crook County, 49 Or LUBA 682 (2005). LUBA agreed with Petitioners that because the County’s findings referred to PUDs as a mechanism for meeting Josephine County Code (JCC) approval criteria, and “[b]ecause the JCC allows the creation of PUDs with lot sizes lower than the zone minimum,” a Goal 14 exception was required. The third subassignment is sustained in part.

Remanded.