Windlinx Ranch Trust v. Deschutes County

1) LUBA will generally not second guess a land use decision-maker's choice between conflicting expert testimony, so long as it appears to LUBA that a reasonable person could decide as the decision-maker did, based on all of the evidence in the record. Westside Rock v. Clackamas County, 51 Or LUBA 264, 294 (2006); Wal-Mart Stores, Inc. v. City of Bend, 52 Or LUBA 261, 276 (2006). 2) A petitioner's arguments must give a county "fair notice" of an issue. Boldt v. Clackamas County, 107 Or App 619, 623 (1991). 3) Only parcels that are lawfully created may be counted in determining whether the requirements of the forest template dwelling statute have been met. Friends of Yamhill County v. Yamhill County, 229 Or App 188, 198 (2009). 4) Substantial evidence is evidence a reasonable person would rely on in making a decision. Dodd v. Hood River County, 317 Or 172, 179 (1993).

Petitioner appealed a hearings officer's decision approving Intervenors' forest template dwelling.

ORS 215.750(3) provides: "In eastern Oregon, a governing body of a county . . . may allow the establishment of a single-family dwelling on a lot or parcel located within a forest zone if the lot or parcel is predominantly composed of soils that are . . . [c]apable of producing 21 to 50 cubic feet per acre per year [(cf/ac/yr)] of wood fiber if [a]ll or part of at least seven other lots or parcels that existed on January 1, 1993, are within a 160-acre square centered on the center of the subject tract[] and . . . [a]t least three dwellings existed on January 1, 1993, on the other lots or parcels.”

In their fifth and sixth assignments of error, Petitioner argued that the hearings officer’s conclusions that, as required by ORS 215.750(3), the property's soils were capable of producing 50 or less cf/ac/yr of wood fiber and the proposed 160-acre square was centered on the center of the property, respectively, were not supported by substantial evidence. LUBA will generally not second guess a land use decision-maker's choice between conflicting expert testimony, so long as it appears to LUBA that a reasonable person could decide as the decision-maker did, based on all of the evidence in the record. Westside Rock v. Clackamas County, 51 Or LUBA 264, 294 (2006); Wal-Mart Stores, Inc. v. City of Bend, 52 Or LUBA 261, 276 (2006). LUBA reasoned that, while Petitioner’s forester’s report showed the property’s soils were capable of producing more than 50 cf/ac/yr, because a reasonable person could rely on Intervenors’ forester’s assessment to conclude that the soils are capable of producing less, the hearings officer’s conclusion was supported. Likewise, LUBA reasoned that, because a reasonable person could rely on Intervenors’ surveyor’s evidence to determine the center of the property, the hearings officer’s conclusion was supported, and further was not undermined by evidence from Petitioner’s surveyor. Accordingly, LUBA denied Petitioner’s first, second, and sixth assignments of error, the second being contingent on the first.

OAR 660-006-0005(5) provides: "When a lot, parcel or tract is reconfigured . . . the effect of which is to qualify a lot, parcel or tract for the siting of a dwelling, the date of the reconfiguration is the date of creation or existence. Reconfigured means any change in the boundary of the lot, parcel, or tract.”

In their third assignment of error, Petitioner argued that the County could not approve the application because the property in its current configuration, following a 2013 property line adjustment, did not exist on January 1, 1993 (referencing the definition of "date of creation and existence” set out in OAR 660-006-0005). Intervenors responded, and LUBA agreed, that a petitioner's arguments must give a county "fair notice" of an issue. Boldt v. Clackamas County, 107 Or App 619, 623 (1991). LUBA reasoned that because the issue was not raised prior to appeal, it had been waived. Accordingly, LUBA denied Petitioner’s third assignment of error.

ORS 215.010(l)(a) provides that: “‘[P]arcel’ includes a unit of land created [b]y partitioning land as defined in ORS 92.010; [i]n compliance with all applicable planning, zoning and partitioning ordinances and regulations; or [b]y deed or land sales contract, if there were no applicable planning, zoning or partitioning ordinances or regulations."

In their fourth assignment of error, Petitioner argued that the hearings officer’s conclusion that there were at least seven lawfully created parcels within the template was not supported by substantial evidence because the record did not show that the lots were created in a manner consistent with ORS 215.010(1)(a). Only parcels that are lawfully created may be counted in determining whether the requirements of the forest template dwelling statute have been met. Friends of Yamhill County v. Yamhill County, 229 Or App 188, 198 (2009). LUBA reasoned that because the verification for Lot 2 relied on previously issued development permits, the hearing officer’s conclusion that Lot 2 was created by deed was not supported. LUBA further reasoned that though Lot 6 was created by partition, it was not included in the partition plat, and therefore did not meet the definition of “parcel.” Finally, LUBA reasoned that though the hearings officer’s findings were adequate to explain the conclusion that lot 7b was created by deed, they were inadequate as to the conclusion that lots 7a and 7c were lawfully created under ORS 215.010(1)(a). Accordingly, LUBA sustained Petitioner’s fourth assignment of error in part. 

DCC 18.40.050(A)(1)(e) provides: “If road access to a dwelling is by a road owned and maintained by a private party . . . then the applicant shall provide proof of a long-term road access use permit or agreement.” DCC 18.04.030 defines "access" to mean "the right to cross between public and private property.”

In their fifth assignment of error, Petitioner argued that the hearings officer’s conclusion that Intervenors had access as required by DCC 18.40.050(A)(1)(e) was not supported by substantial evidence because the easement granted to Intervenors' predecessors-in-interest giving access to a public road was not intended to benefit the property as reconfigured. Substantial evidence is evidence a reasonable person would rely on in making a decision. Dodd v. Hood River County, 317 Or 172, 179 (1993). Agreeing with Intervenors, LUBA reasoned that, because the easement describes the benefitted property as including the same physical area as the subject property, the hearings officer’s conclusion was supported. Accordingly, LUBA denied the fifth assignment of error.

Remanded.