Dodd v. Hood River County

• Decision Date: 21 September 1993
• Citation: 317 Or. 172,855 P.2d 608
• Parties: Thomas DODD, Doris Dodd, and Oregonians In Action, Petitioners on Review, v. HOOD RIVER COUNTY; Oregon Department of Fish and Wildlife; Oregon Department of Land Conservation and Development; Oregon Department of Forestry; and 1000 Friends of Oregon, Respondents on Review. LUBA 91-116; CA A73984; SC S39683, SC S39684.
• Court: Oregon Supreme Court

Page 608

855 P.2d 608

317 Or. 172

Thomas DODD, Doris Dodd, and Oregonians In Action Petitioners on Review, v. HOOD RIVER COUNTY; Oregon Department of Fish and Wildlife Oregon Department of Land Conservation and Development; Oregon Department of Forestry; and 1000 Friends of Oregon, Respondents on Review.

LUBA 91-116; CA A73984; SC S39683, SC S39684.

Supreme Court of Oregon In Banc.

Argued and Submitted March 4, 1993.

Decided July 22, 1993.

Reconsideration Denied Sept. 21, 1993.

Richard M. Stephens, of Pacific Legal Foundation, Bellevue, WA, argued the cause and filed the petition for petitioners on review Thomas and Doris Dodd.

David B. Smith, Tigard, argued the cause for petitioner on review Oregonians in Action. With him on the petition was Dorothy S. Cofield, Tigard.

Teunis Wyers, Hood River, argued the cause for respondent on review Hood River County.

Robert Liberty, Portland, argued the cause for respondent on review 1000 Friends of Oregon. Peter Livingston, Portland, filed the response for 1000 Friends of Oregon.

John T. Bagg, Asst. Atty. Gen., Salem, argued the cause for respondents on review Oregon Dept. of Fish and Wildlife, Oregon Dept. of Land Conservation and Development, and Oregon Dept. of Forestry. With him on the response were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Daniel J. Popeo and Paul D. Kamenar, of the Washington Legal Foundation, Washington, D.C., and Gregory S. Hathaway, of Garvey, Schubert, & Barer, Portland, filed a brief amicus curiae for the Washington Legal Foundation.

[317 Or. 174-A] Lawrence Watters, Counsel, Columbia River Gorge Com'n, White Salmon, WA, and Teunis Wyers, Hood River, filed a brief amicus curiae for the Columbia River Gorge Com'n VAN HOOMISSEN, Justice.

Hood River County (the county) denied Thomas and Doris Dodd's (petitioners) application for a conditional use permit to build a single family dwelling in a forestry zone. ¹ The Land Use Board of Appeals (LUBA) affirmed. Dodd v. Hood River County, 22 Or LUBA 711 (1992). The Court of Appeals also affirmed. Dodd v. Hood River County, 115 Or.App. 139, 836 P.2d 1373 (1992).

The issues before this court are (1) whether LUBA's findings are supported by substantial evidence in the record; (2) whether petitioners' property has been "taken" by the county under Article I, section 18, of the Oregon Constitution; ² and (3) whether the county has taken a "conservation easement" ³ in petitioners' property. On review, pursuant to ORS 197.850(9), ⁴ we affirm.

In 1983, petitioners purchased 40 acres of land in Hood River County's F-1 (forest) zone for $33,000, intending eventually to build a dwelling there for use after their retirement. At that time, the zoning of the land permitted construction of a dwelling. ⁵ However, the county was then in the process of revising its comprehensive plan to bring the plan into compliance with the Land Conservation and Development Commission's (LCDC) Statewide Planning Goals. In December 1984, the county's ordinance was amended to conform to LCDC Goal 4. As amended, the ordinance prohibited construction of dwellings on F-1 (forest) zone land of 40 acres and larger, unless such dwellings were "necessary and accessory to a forest use." ⁶

In 1990, petitioners filed with the county a consolidated application for a land use permit, conditional use permit, and a zone and comprehensive plan change to erect a dwelling on their land. Finding that petitioners' proposed dwelling was not "necessary and accessory to a forest use," the county denied petitioners' application. Petitioners appealed to LUBA.

Before LUBA, petitioners argued (1) that the county's findings were not supported by substantial evidence in the record, (2) that the county's action was a "taking" of their land in violation of Article I, section 18, and (3) that the county had taken a "conservation easement" in their land in violation of ORS 271.725. The evidence before LUBA included a report prepared by petitioners' expert, concluding that petitioners' land was worth only $691 if it was unbuildable. ⁷ The Oregon Department of Forestry reviewed petitioners' expert's report and concluded that its forest capability predictions were inconsistent with the department's data and that the projected figures were not based on the productive potential of petitioners' land. The county's forester surveyed petitioners' land and estimated that 24 acres could be used for timber production and that the amount of timber on petitioners' land was almost three times as much as had been estimated by petitioners' expert. The forester concluded that, even after deducting reforestation costs, petitioners could get at least $10,000 from the sale of the timber on their land alone.

LUBA found:

"It appears that the property has some limitations for forest use, but can produce a net profit if properly managed for timber production. The limited value of the existing timber as well as the lesser value ascribed to the future timber production potential of the property by petitioners' expert appears to have as much to do with past deficiencies in forest management and limited forest management projected in the future, as with the inherent limitations of the property." Dodd v. Hood River County, supra, 22 Or LUBA at 732.

LUBA affirmed the county's decision, concluding that the denial did not constitute a "taking" under Article I, section 18. Id. at 711. Petitioners sought judicial review in the Court of Appeals.

The Court of Appeals affirmed LUBA's decision, stating that petitioners had lost nothing except the ability to build a dwelling, and nothing was obtained by anyone else. The court stated that the only question petitioners could present was "whether the denial amounted to a regulatory taking under the standard articulated in Fifth Avenue Corp. [v. Washington County, 282 Or. 591, 609, 581 P.2d 50 (1978) (property is not taken where zoning regulation allows landowner some 'substantial beneficial use' of property) ]." 115 Or.App. at 142-43, 836 P.2d 1373. The court held that LUBA's conclusion from the record--that the forest use petitioners may conduct on their property had a potential value of at least $10,000--was enough for "a substantial beneficial use of the property to exist." Id. at 143, 836 P.2d 1373. The court rejected petitioners' argument that, because dwellings are permitted on other parcels in the same zone, the county's regulation does not advance a legitimate governmental interest:

"The law of non-conforming uses is well-established in Oregon, and it promotes the value of allowing owners to continue uses of property that were lawful when they were established but that later legislation would restrict or preclude. Petitioner[s'] * * * argument seems to posit that the government cannot have more than one legitimate interest that has some bearing on the same object. There is nothing inconsistent in the simultaneous protection of pre-existing property rights and of resources that are the subject of new regulation." 115 Or.App. at 143-44, 836 P.2d 1373. ⁸

In sum, the Court of Appeals rejected all of petitioners' assignments that challenged LUBA's ruling on the Article I, section 18, issues. Id. at 144, 836 P.2d 1373. We allowed review.

On review, petitioners argue (1) that LUBA's findings of fact are not supported by substantial evidence in the record, (2) that LUBA erred in concluding that their land was not "taken" by the county in violation of ARTICLE I, SECTION 18, AND (3)⁹ that LUBA erred in concluding that the county had not taken a "conservation easement" in their land. ¹⁰

Petitioners first argue that substantial evidence does not support a finding that their property is worth more than $691, the current net value of the property established by petitioners' expert. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding. ORS 183.482(8)(c); Younger v. City of Portland, 305 Or. 346, 351-52, 752 P.2d 262 (1988). The "substantial evidence" inquiry necessarily is case specific. Reguero v. Teacher Standards and Practices, 312 Or. 402, 417-18, 822 P.2d 1171 (1991).

LUBA apparently concluded, based on the record, that there existed substantial evidence for finding that petitioners' property (or the timber on that property) had a potential value of at least $10,000. Petitioners argue that the evidence of the state Department of Forestry and the county's forester is merely "junk science," and they assert that acceptance of that evidence is contrary to this court's admonition in 1000 Friends of Oregon v. LCDC (Lane Co.), 305 Or. 384, 405, 752 P.2d 271 (1988), that a "county cannot expect that any unsupported assertion that is entered in the record can be used to justify a planning decision." 1000 Friends, however, involved mere assertions in a letter from a representative of a land owners association, and "nothing in the letter [indicated] that the author or the association had background or evidence to support the assertions." Id. at 404, 752 P.2d 271. The evidence in this case was far more substantial.

According to the Department of Forestry, citing a USDA Soil Conservation Service study of Hood River County from 1981, petitioners' expert's estimate was incorrect. The county's forester based his estimate on a review of the area from the ground and from aerial photographs. He made detailed findings about the timber on petitioners' land, as well as conclusions as to its value. His estimate of value was based on recent timber sales in Hood River County, and he provided specific information about those sales. He estimated that there are 24 acres that could be used for forest production.

LUBA's evaluation of the "substantiality of evidence supporting a decision must consider all the evidence in the record." Younger v. City of Portland, supra, 305 Or. at 358, 752 P.2d 262. LUBA considered the...