Delmonico v. Washington County

1) Where an assignment of error is raised solely in the footnotes of a petition for review, LUBA will not address it. 2) Where an on-site delineation of a significant natural resource (SNR) is determined to be different from the general location on the SNR inventory map, LUBA will hold that a local government does not err in concluding the on-site delineation is the proper location of the resource. 3) Where a development activity is excepted from a restriction under local ordinance, LUBA will hold that a condition on the approval of the development activity need not also be separately excepted.

Petitioner appealed the County’s approval of the applicant’s plan to subdivide a property into fifteen residential lots. The County had an acknowledged Goal 5 implementation in its code at the time of the decision with maps identifying significant natural resources (SNR) within the County that required protection. The inventory maps showed a riparian corridor running through the proposed development area, and the applicant’s expert conducted an on-site investigation as part of the Goal 5 ESEE evaluation of the property and concluded the identified riparian corridor was in the southern part of the property, outside of where the proposed development would take place. The County also required the applicant to obtain documentation from a non-county service provider that “adequate water, sewer, and fire protection can be provided to the proposed development.” The service provider required the applicant to include mitigation plantings in the riparian SNR as a condition of the approval of their proposed installation of utility lines and creation of a street crossing over the riparian area. The County found the expert’s evaluation was proper and it approved the application.

On appeal to LUBA, Petitioner made four assignments of error: 1) the County’s decision was in violation of a county ordinance prohibiting the alteration of a riparian corridor or significant water area, 2) the County erred in concluding the applicant’s plantings within the riparian corridor were an allowed exception under county ordinance, 3) the proposed plantings did not comply with the requirements attached to certain exceptions, and 4) the County’s decision that Goal 5 was met by applicant’s ESEE evaluation was not supported by substantial evidence.

LUBA first denied Petitioner’s fourth assignment of error, noting that the County had first decided Goal 5 did not apply, and in the alternative concluded to the extent that Goal 5 may apply, the applicant had met its requirements. As Petitioner did not challenge the County’s decision that Goal 5 did not apply, LUBA assumed that the County was correct in concluding Goal 5 did not apply, and thus Petitioner’s assignment of error provided no basis for reversal or remand. That Petitioner raised the issue in a footnote was not to the contrary, as LUBA will not address assignments of error raised solely in footnotes.

LUBA then denied Petitioner’s first assignment of error, finding that development was not proposed to take place within a riparian SNR. LUBA reasoned that areas on the SNR inventory maps were not to be directly transposed to a location on the ground as Petitioner argued because, as the County had found, the maps were “developed at a broad scale” and on-site refinement was necessary to delineate the resource’s true location. LUBA agreed with the County that other resources found during the on-site evaluation that were not identified on the SNR inventory maps were not considered “significant” and, thus, were not subject to the ordinance’s protection, even if they happened to be in the area where the SNR was located on the maps.

LUBA denied Petitioner’s second and third assignments of error, agreeing with the County’s reasoning that the installation of utility lines and street crossings were expressly allowed exceptions to the ordinance and that the plantings were a condition of the applicant’s proposed developments, rather than an activity the applicant proposed to do themselves. LUBA concluded the County did not err in finding the applicant’s proposed development met the exceptions of the ordinance.

Affirmed.