Schaefer v. Marion County

LUBA will interpret OAR 660-004-0020(2)(b) to include land available for lease unless the record demonstrates that the property owner is "categorically unwilling" to lease the land. Columbia Riverkeeper v. Columbia County, 70 Or LUBA 171, 195, aff’d, 267 Or App 637 (2014). Findings must address and respond to specific issues relevant to compliance with applicable approval standards that were raised in the proceedings below. Norvell v. Portland Area LGBC, 43 Or App 849, 853 (1979). Statewide planning goals are the foundation of Oregon’s land use system, exceptions are exceptional, 1000 Friends of Oregon v. LCDC, 69 Or App 717, 731 (1984), and a reasons exception is the most limited type. Riverkeeper I, 70 Or LUBA at 181-82.

Petitioner appealed the County’s approval of a comprehensive plan to develop property adjacent to a municipal airport for additional airport-related uses, including rezoning the land from Exclusive Farm Use to Public and Semi-Public. On appeal to LUBA Petitioner argued, among other things, that the County erred in finding the proposed use was consistent with Statewide Planning Goals and did not require an exception. LUBA agreed with the County that OAR 660-012-0065(3)(n) states that “expansions or alterations of public use airports that do not permit service to a larger class of airplanes” are consistent with Goals 3, 4, 11, and 14 and do not require a reasons exception. Petitioner appealed LUBA’s decision to the Court of Appeals, which determined LUBA misapplied OAR 660-012-0065(3)(n) because the case concerned a request by private party and was not an expansion of a public use airport as contemplated in OAR 660-012-0065(3)(n). The Court of Appeals also concluded LUBA erred in rejecting Petitioner’s claim that the proposed uses were not contemplated in the original exception and would increase the intensity of use beyond what was approved.

On remand, applying OAR 660-012-0065(3)(n) as interpreted by the Court of Appeals, LUBA sustained Petitioner’s sixth assignment of error that the proposed use was not contemplated in OAR 660-012-0065(3)(n) and required a reasons exception. Petitioner’s other assignments of error addressed the County’s alternate findings regarding the approval of a reasons exception. In particular, LUBA focused on Petitioner’s third, fourth, fifth, and ninth assignments of error: 3) the County impermissibly denied Petitioner’s evidence of other areas not requiring an exception which could accommodate the proposed uses, 4) the County improperly concluded the proposed airport-related uses were compatible with adjacent farm-related uses, 5) the County failed to consider that the proposed urban uses can be accommodated within the urban growth boundaries of other municipalities, and 9) the County failed to consider the intensity of the proposed uses was outside what was contemplated in the original exception and required a new exception.

Under OAR 660-004-0020(2)(b)(B), when determining if a site is justified for a reasons exception, a county must evaluate “why other areas that do not require a new exception cannot reasonably accommodate the proposed use.” A county need not conduct specific alternative site comparisons unless another party to the proceeding identifies specific sites that can better support the proposed uses. OAR 660-004-0020(2)(b)(C). LUBA will interpret OAR 660-004-0020(2)(b) to include land available for lease unless the record demonstrates that the property owner is "categorically unwilling" to lease the land. Columbia Riverkeeper v. Columbia County, 70 Or LUBA 171, 195, aff’d, 267 Or App 637 (2014) (Riverkeeper I). LUBA sustained Petitioner’s third assignment of error, finding the County had incorrectly interpreted OAR 660-004-0020(2)(b)(B) to consider only properties for sale. Because Petitioner identified properties available for lease that could accommodate the proposed uses without an exception, the County was required under OAR 660-004-0020(2)(b)(C) to include them in its evaluation.

When evaluating the proposed uses of the site, a county is required to find that “[t]he proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts. The exception shall describe how the proposed use will be rendered compatible with adjacent land uses.” OAR 660-004-0020(2)(d). Findings must address and respond to specific issues relevant to compliance with applicable approval standards that were raised in the proceedings below. Norvell v. Portland Area LGBC, 43 Or App 849, 853 (1979). LUBA sustained the third sub-assignment of Petitioner’s fourth assignment of error, finding that the County failed to adopt adequate findings as to how the increase in intensity of traffic around the airport would impact adjacent farm uses. LUBA also agreed the County failed to explain how improvements to the frontage road and nearby intersections would render that intensity of traffic compatible with the farm uses.

To approve a reasons exception, a county must show “that the proposed urban development cannot be reasonably accommodated in or through expansion of existing urban growth boundaries.” OAR 660-014-0040(3)(a). Statewide planning goals are the foundation of Oregon’s land use system, exceptions are exceptional, 1000 Friends of Oregon v. LCDC, 69 Or App 717, 731 (1984), and a reasons exception is the most limited type. Riverkeeper I, 70 Or LUBA at 181-82. LUBA sustained the second sub-assignment of Petitioner’s fifth assignment of error, interpreting OAR 660-014-0040(3)(a) broadly to give effect to Goal 14’s aim to concentrate urban uses on urban and urbanizable land, and finding the County had incorrectly construed that rule as restricting its search to land within its borders. LUBA noted that while the County correctly concluded it had no authority to expand an urban growth boundary in another county, the text of OAR 660-014-0040(3)(a) did not restrict the search of land only to the land within the County’s control, but simply included “existing urban growth boundaries.”

“A local government that takes a reasons exception . . . must limit the uses, density, public facilities and services, and activities to only those that are justified in the exception. . . When a local government changes the types or intensities of uses or public facilities and services in an area approved” for the reasons exception, a new reasons exception is required. OAR 660-004-0018(4)(a)-(b). In light of the Court of Appeals decision, LUBA sustained Petitioner’s ninth assignment of error, noting that the County failed to make any findings on whether the proposed uses would intensify the uses beyond what was permitted in the original exception. Remanded.