Tylka v. Clackamas County

Where the Hearings Officer sufficiently identified the relevant standards and criteria, stated the relied upon facts, and explained the justification for the land use decision, LUBA will find that the local government applied the necessary subjective provisions to justify their land use decision as to a property setback requirement under ZDO 704.04(A). In the absence of any challenge to the officer’s application of ZDO 704.04(A), petitioner’s argument will not provide a sufficient basis for reversal or remand.

Petitioner appealed the approval of a principal river conservation area permit (PRCA), allowing for a single-family dwelling to be built 128 feet setback from the mean high-water mark of the Salmon River. Clackamas County Zoning and Development Ordinance (ZDO) 704.04(A) requires structures to be located a minimum of 100 feet from the mean high water line of a principal river (like the Salmon River), but allows the county to increase the minimum setback up to 150 feet in order to “lessen the impact of development”. The impact of the development is assessed based on seven subjective topographical factors under ZDO 704.04(A). The Hearings Officer used such factors in requiring the 128-foot setback in excess of the 100-foot minimum, including considering the presence of a “cliff” on the subject property, the size of the proposed dwelling, and the right to public access or established recreation areas at the location. 

In addition, the Hearings Officer considered ORS 197.307(4), which provides that “a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing, including needed housing. The standards, conditions, and procedures… (b) May not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonably cost or delay.” (emphasis added) In determining the adequacy of a 128-foot setback, the hearings officer reasoned that ZDO 704.04(A) was not sufficiently “clear and objective” and therefore could not be used to necessarily require a greater than 100-foot setback which could result in discouraging the development of housing. Regardless, the 128-foot setback was approved based on ZDO 704.04 factors (1) through (7) as means of lessening the impact of the development. 

Assignments of Error 1 & 2.

In their first and second assignments of error, petitioners argued that ORS 197.307(4) did not prohibit the county from applying the ambiguous and subjective standards in ZDO 704.04 (1)-(7). In response, the county argued that the Hearings Officer did in fact apply the subjective standards of ZDO 704.04(A) when determining that the appropriate setback exceeded the minimum 100-foot requirement. LUBA agreed and noted that the Hearings Officer’s decision included sufficient identification of relevant topographical factors under ZDO 704.04(A), stated the facts relied upon, and explained the justification of the setback decision. LUBA reasoned that petitioner’s challenge was in essence, that the “hearings officer should do what the hearings officer in fact did.” Accordingly, LUBA held that in absence of a challenge to the application of ZDO 704.04(A), the petitioner’s arguments provided no basis for reversal or remand. 

The first and second assignment of errors were denied. 

ORS 197.835(9)(a)(C) provides that LUBA shall reverse or remand a decision that is not supported by substantial evidence in the whole record. In the third assignment of error, Petitioner argued that the hearing’s officer’s decision that the 128-foot setback lessened the impact of development was not supported by substantial evidence in the whole record. The county responded, and LUBA agreed, that the county had discretion to apply the factors under ZDO 704.04(A) to determine the appropriate setback to lessen the impact of development. As a result, LUBA held that Petitioner’s mere disagreement with the weighing of the evidence does not provide a basis for remand. 

Assignment of Error 3

In the third assignment of error, Petitioner argued that the hearing’s officer’s decision that the 128-foot setback lessened the impact of development was not supported by substantial evidence in the whole record. The county responded, and LUBA agreed, that the county had discretion to apply the factors under ZDO 704.04(A) to determine the appropriate setback to lessen the impact of development.

ORS 197.835(9)(a)(C) provides that LUBA shall reverse or remand a decision that is not supported by substantial evidence in the whole record. LUBA held that Petitioner’s mere disagreement with the weighing of the evidence does not provide a basis for remand. Petitioner further argued that the location of the “mean high water line” for purposes of establishing the setback was not supported by substantial evidence in the record because (1) the high water line had not been established by a licensed hydrologist or other County personnel, and (2) that it should have been identified in two locations because the river is not “perfectly parallel” to the subject property. LUBA reasoned that the definition of “mean high water line” under ZDO 704.02(C) does not require that such a determination be made by a hydrologist or county official, nor does it require the high water line to be established in more than one location relative to the river. LUBA held that the hearings officer’s decision was supported by substantial evidence in the whole record.

The third assignment of error was denied. 

Affirmed.