Dodd v. Hood River County

• Decision Date: 22 December 1992
• Citation: 115 Or.App. 139,836 P.2d 1373
• Parties: Tom DODD and Doris Dodd, Cross-Petitioners, and Oregonians in Action, Petitioner, v. HOOD RIVER COUNTY, Respondent-Cross-Respondent, and Oregon Department of Fish and Wildlife, Oregon Department of Land Conservation and Development, Oregon Department of Forestry and 1000 Friends of Oregon, Respondents. LUBA 91-116; CA A73984.
• Court: Oregon Court of Appeals

Page 1373

836 P.2d 1373

115 Or.App. 139

Tom DODD and Doris Dodd, Cross-Petitioners, and Oregonians in Action, Petitioner, v. HOOD RIVER COUNTY, Respondent-Cross-Respondent, and Oregon Department of Fish and Wildlife, Oregon Department of

Land Conservation and Development, Oregon

Department of Forestry and 1000 Friends

of Oregon, Respondents.

LUBA 91-116; CA A73984.

Court of Appeals of Oregon.

Argued and Submitted Aug. 12, 1992.

Decided Sept. 9, 1992.

Reconsideration Denied Nov. 12, 1992.

Review Allowed Dec. 22, 1992.

David B. Smith, Tigard, argued the cause and filed the brief for petitioner.

Richard M. Stephens, Bellevue, Washington, argued the cause for cross-petitioners. With him on the brief was Pacific Legal Foundation, Bellevue, Washington.

Teunis Wyers, Hood River, filed the briefs for respondent-cross-respondent.

John T. Bagg, Asst. Atty. Gen., Salem, argued the cause for respondents Oregon Dept. of Fish and Wildlife, Oregon Dept. of Land Conservation and Development and Oregon Dept. of Forestry. With him on the briefs were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Peter Livingston, Portland, argued the cause and filed the briefs for respondent 1000 Friends of Oregon.

Before RICHARDSON, P.J., and DEITS and DURHAM, JJ.

RICHARDSON, Presiding Judge.

Petitioner Oregonians In Action and cross-petitioners Dodd ¹ seek review of LUBA's decision affirming Hood River County's denial of cross-petitioners' application for a conditional use permit and related approvals to build a single family dwelling in a forestry zone. We affirm.

Petitioner and cross-petitioners assign error to LUBA's conclusion that the denial did not give rise to a taking under Article I, section 18, of the Oregon Constitution. ² The county denied the application, because it concluded that the proposed dwelling did not satisfy the approval standard in its ordinance that dwellings in the zone be "necessary and accessory to a forest use."

The Supreme Court said in Fifth Avenue Corp. v. Washington Co., 282 Or. 591, 609, 581 P.2d 50 (1978):

"Where a zoning designation allows a landowner some substantial beneficial use of his property, the landowner is not deprived of his property nor is his property 'taken.' " ³

See also Suess Builders v. City of Beaverton, 294 Or. 254, 656 P.2d 306 (1982). Faced with that Oregon constitutional test of "regulatory takings," petitioner and cross-petitioners offer a variety of less formidable alternatives to affixing that label to the county's decision. They argue, for example, that the denial of the desired use gave rise to a "conservation easement" for the public's or the county's benefit. See ORS 271.715 et seq. We reject those attempts to recharacterize the county's decision. The basis for the denial of the application was that the proposed dwelling did not meet the criteria for forest dwellings in the regulatory ordinance. Nothing was lost by cross-petitioners except the ability to build the dwelling, and nothing was obtained by anyone else. The only question that petitioner's and cross-petitioners' arguments can present is whether the denial amounted to a regulatory taking under the standard articulated in Fifth Avenue Corp., and their attempts to change the question by defining the county's action as a public acquisition rather than a regulation of land use does not succeed.

Cross-petitioners argue that LUBA erred in concluding that the forest use that they may conduct on the property constitutes a "substantial beneficial use." They first contend that the evidence on which LUBA relied in reaching its apparent conclusion that the use had a potential value of $10,000 was not substantial. Even assuming that cross-petitioners' failure to request an evidentiary hearing before LUBA does not foreclose them from making that argument, see ORS 197.830(13)(b); OAR 661-10-045(1), it is wrong on its merits.

Cross-petitioners also contend that, even if the forest use on the property can generate $10,000, that is not of substantial benefit when weighed against the purchase price of more than $33,000 that they paid for the property. Cross-petitioners point to no authority that supports ...