Save Stafford Road v. Clackamas County

Under ORS 197.015, a Land Use Compatibility Statement (LUCS) that is issued by a local government is not considered a “land use decision” subject to LUBA review if the project is deemed compatible with local regulations and will require further land use review.

The county, respondent, issued a land use compatibility statement (LUCS) for a transmission line (the RW line) that would run through private property that is zoned in the county as Exclusive Farm Use (EFU) and Rural Residential Farm Forest (RRFF). Portland General Electric (PGE), the intervenor respondent, applied for a certificate of public necessity and sought the LUCS as a part of that application. The LUCS serves to certify that the RW Line is compatible with local land use regulations so long as PGE obtains the necessary permits. The petitioner appealed the county’s issuance of the LUCS, challenging the project’s compatibility with local regulations.

On appeal, the county responded that the issuance of the LUCS is not a “land use decision” under the definition of ORS 197.015 that the Land Use Board of Appeals would have jurisdiction to review because an exclusion to the statute applies if an agency decision states that a project is compatible and is still in need of further land use review. In its analysis, the Court looked at precedent from McPhillips Farm, Inc. v. Yamhill County where the court had dismissed a petitioner’s appeal of a county decision that approved a LUCS that stated that a state agency’s permit was compatible with the county’s land use laws. This case was used to support the Court's conclusion, finding for the county, that the local government’s compatibility determination was sufficient on its own, and therefore exempting the decision from LUBA review. The Land Use Board of Appeals for the State of Oregon granted the county’s motion to dismiss this action.