1000 Friends of Oregon v. Land Conservation and Development Com'n

• Jurisdiction: Oregon
• Citation: 1000 Friends of Oregon v. Land Conservation and Development Com'n, 731 P.2d 457, 83 Or.App. 278 (Or. App. 1987)
• Docket Number: ACK-201
• Parties: 1000 FRIENDS OF OREGON, Petitioner, v. LAND CONSERVATION AND DEVELOPMENT COMMISSION, Respondent, Lane County and Oregon Forest Industries Council, Intervenors--Respondents. 84-; CA A33755. . *
• Court: Oregon Court of Appeals
• Decision Date: 13 March 1987

Page 457

731 P.2d 457

83 Or.App. 278

1000 FRIENDS OF OREGON, Petitioner, v.LAND CONSERVATION AND DEVELOPMENT COMMISSION, RespondentLane County and Oregon Forest Industries CouncilIntervenors--Respondents.

84-ACK-201; CA A33755.

Court of Appeals of Oregon In Banc. ^*

Argued and Submitted June 25, 1986.

Resubmitted in banc Dec. 3, 1986.

Decided Jan. 14, 1987.

Reconsideration Denied March 13, 1987.

Robert L. Liberty, Portland, argued the cause and filed the briefs, for petitioner.

Michael A. Holstun, Asst. Atty. Gen., Salem, argued the cause, for respondent Land Conservation and Development Comn.With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol.Gen., Salem.

William A. Van Vactor, Eugene, argued the cause and filed the brief, for intervenor-respondentLane County.

Frank M. Parisi, Portland, waived appearance for intervenor-respondentOregon Forest Industries Council.

WARDEN, Presiding Judge.

1000 Friends of Oregon (1000 Friends) seeks review of the Land Conservation and Development Commission's (LCDC) acknowledgment of Lane County's Rural Comprehensive Plan.Most of the assignments of error concern portions of the plan which 1000 Friends believes improperly permit the establishment of dwellings on rural agricultural and forest lands.We reverse on all but one of the assignments of error.

In its first assignment, petitioner asserts that provisions of the F-2 (impacted forest lands) zone violate Goal 4.That goal requires that forest lands be conserved for forest uses, which it defines as:

"(1) the production of trees and the processing of forest products; (2) open space, buffers from noise, and visual separation of conflicting uses; (3) watershed protection and wildlife and fisheries habitats; (4) soil protection from wind and water; (5) maintenance of clean air and water; (6) outdoor recreational activities and related support services and wilderness values compatible with these uses; and (7) grazing land for livestock."

None of those uses directly involves residences.However, since Lamb v. Lane County, 7 Or LUBA 137(1983), LCDC has interpreted Goal 4 to permit dwellings or other non-enumerated uses which are "necessary and accessory" to one of the enumerated forest uses.7 Or LUBAat 143.Residences permitted under that interpretation are known as forest dwellings.¹1000 Friends attacks the conditions on which the county permits forest dwellings, asserting that they are inadequate to preserve forest lands for forest uses.It argues that the conditions violate the goal both as a matter of law and as a matter of fact.We hold that the criteria are legally insufficient to meet the requirements of the goal, as LCDC has interpreted those requirements.²

LCDC's requirement that a forest dwelling be necessary and accessory to a forest use ³ is a reasonable construction of the Goal 4 requirement that forest land be preserved for forest uses.LCDC applied that requirement in finding that an earlier version of the county's plan failed to comply with the goal.The question is whether LCDC erred in deciding that the county's current criteria for forest dwellings in the F-2 zone comply.Lane County Development Code§ 16.211(3)(b) provides:

"A dwelling or mobile home, and any accessory structures, on a vacant legal lot containing at least 10 acres shall be deemed accessory and necessary to the forest management of the legal lot provided:

"(i) A detailed forest management plan sufficient to obtain a tax deferral is submitted for the legal lot which demonstrates forest production will be enhanced by on-site forest management from the residence, and

"(ii) Based upon the above-referred forest management plan, the property has qualified for a tax deferral pursuant to State law, and

"(iii) The forest management plan shall specify how the following practices, when applicable, are to be addressed: road and fire trail construction and maintenance, site preparation, reforestation, stand conversion, planning of nonstocked openings, competition reduction/release, precommercial thinning, harvest scheduling/rotation and special site treatment for topography and other concerns.

"(iv) If the legal lot does not have a forest deferral pursuant to State law, then upon substantial completion of the details represented in the forest management in LC16.211(3)(b)(i) above, the dwelling or mobile home shall be allowed on the property.Substantial completion of the details represented in the forest management plan shall be verified by a qualified private forester and such verification shall be submitted in writing to the Department.During the interim, while the forest management plan is being implemented on the subject legal lot, a temporary mobile home in conjunction with the forest use shall be allowed for a period not to exceed 5 years.If the forest management plan is not implemented within the five-year period, the temporary mobile home shall be removed."

Any proposed dwelling which meets the criteria of this provision is automatically "deemed" necessary and accessory to the forest use.Thus the county and LCDC held, as a matter of law, that the criteria are sufficient to assure compliance with Goal 4.In that holding they erred.⁴

The county defines "accessory" as "[i]ncidental, appropriate and subordinate to the main use of a tract or structure."Lane County Development Code§ 16.090.That definition is consistent with LCDC's use of the term; LCDC could properly find that any forest dwelling which meets the county's criteria would be accessory to a forest use.The dwelling must also, however, be necessary.Neither LCDC nor the county has defined that term.The dictionary definition is "that cannot be done without: that must be done or had: absolutely required."Webster's Third New International Dictionary 1511 (1976).That definition is compatible with LCDC's use of "necessary"⁵ and with Goal 4's requirement that forest lands be preserved for forest uses.Lane County's criteria would allow dwellings which can be done without, need not be had and are not absolutely required for a forest use; they therefore do not comply with the goal.

Lane County Development Code§ 16.211(3)(b)(i) requires that there be a forest management plan "which demonstrates [that] forest production will be enhanced by on-site forest management" from the dwelling.(Emphasis supplied.)Many things can enhance production without being necessary to it.It may be more convenient for the owner of forest land to do required cultivation work from a nearby residence rather than commuting from a home some distance away, but that does not make it necessary to do so.Living on the land may help deter arsonists, and thereby enhance production, but that fact does not render a forest dwelling necessary.For a forest dwelling to be necessary and accessory to wood fiber production, it must, at the least, be difficult to manage the land for forest production without the dwelling.The purpose of the dwelling must be to make possible the production of trees which it would not otherwise be physically possible to produce.That requirement, which is inherent in the concept of necessary, is absent from section 16.211(3)(b).⁶

The second assignment attacks Lane County Development Code§ 16.211(3)(c), which also applies to the F-2 zone.It permits a

"dwelling or mobile home, and any accessory structures, in conjunction with the propagation or harvesting of a forest product on a vacant legal lot that is managed as part of a woodlot meeting the Douglas-fir cubic foot site index and acreage requirements below, provided sufficient factual documentation concerning the forest management, the soils, cubic foot site indices and acreage of the legal lot is presented by the applicant to verify that the legal lot meets the minimum cubic foot site index acreage requirements specified [in the rest of the section]."

Such "woodlot" dwellings are permitted in exclusive farm use (EFU) zones.ORS 215.213(2)(a), (b).The F-2 zone contains significant small farming units as well as small forested lots, and the county and LCDC argue that it was within LCDC's authority to allow uses permitted in EFU zones in the F-2 zone as well.They do not assert that the F-2 zone is an EFU zone.

Lane County Development Code§§ 16.211(4)(k) and (1) permit woodlot homes on those properties within the F-2 zone that are in predominately agricultural use; 1000 Friends specifically agrees with that provision.It attacks the extension of the "woodlot" dwelling exemption to those portions of the F-2 zone which would not by themselves qualify for EFU zoning.The code does not purport to require that the dwelling be necessary and accessory to a forest use, but only that the land meet certain fertility requirements and be managed for forest production.There is no attempt to show that forest production would require an on-site dwelling in every instance.If LCDC determined that the "woodlot" dwelling provisions meet the requirements of Goal 4 for forest uses, it erred.

LCDC does not appear to claim that it held that the "woodlot" provisions satisfy Goal 4.Rather, relying on Shadybrook Environ.Protec.Assn. v. Wash. Co., 61 Or.App. 474, 658 P.2d 1168, rev. den.294 Or. 682, 662 P.2d 725(1982), it argues that it may appropriately determine to allow as conditional uses in mixed forest and farm areas all those uses which are permitted in EFU zones.Its argument is based on a misreading of Shadybrook.The issue in that case was whether a quarry is a permissible non-forest use in a combined agricultural and forestry district.Quarries are permitted without goal exceptions in EFU zones but not in forestry zones.We held that mixed zones have to meet the requirements of both goals.Thus, the statutory exception permitting quarries in EFU zones did not excuse compliance with Goal 4.

However, we also held that it was possible to show that a quarry would not...