Kenney v. Tillamook Cnty., LUBA No. 2020-117

• Decision Date: 26 April 2021
• Docket Number: LUBA No. 2020-117
• Parties: MELISSA KENNEY and JUDD MOORE, Petitioners, v. TILLAMOOK COUNTY, Respondent, and KEVIN SHLUKA and KATIE SHLUKA, Intervenors-Respondents.
• Court: Oregon Land Use Board of Appeals

MELISSA KENNEY and JUDD MOORE, Petitioners, v. TILLAMOOK COUNTY, Respondent,andKEVIN SHLUKA and KATIE SHLUKA, Intervenors-Respondents.

LUBA No. 2020-117

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

April 26, 2021

FINAL OPINION AND ORDER

Appeal from Tillamook County.

Sean T. Malone filed the petition for review and reply brief and argued on behalf of petitioner.

No appearance by Tillamook County.

Steven P. Hultberg filed the response brief and argued on behalf of intervenors-respondents. Also on the brief were Zoee Lynn Powers and Radler White Parks & Alexander LLP.

RUDD, Board Chair; RYAN, Board Member; ZAMUDIO, Board Member, participated in the decision.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.Opinion by Rudd.

NATURE OF THE DECISION

Petitioners appeal a county board of commissioners decision approving a conditional use permit and height and setback variances for a 25-unit apartment complex.

MOTION TO INTERVENE

Kevin Shluka and Katie Shluka (intervenors), the applicants below, move to intervene on the side of the county. The motion is unopposed and is granted.

FACTS

The 0.58-acre subject property is located in the unincorporated community of Pacific City/Woods. Bounded by Sunset Drive to the west, Pacific Avenue to the north, the Nestucca River to the east, and residential properties to the south, the property slopes from Sunset Drive easterly towards the Nestucca River. "[R]oughly one-half of [intervenors'] property is within the FEMA 100-year floodplain. Roughly one-third of the property is burdened by [a] riparian setback." Record 34.

There is "a level terrace located within the northeastern portion of the subject property that serves as an existing unimproved parking area for recreational fisherman and visitors to the area." Record 41. Intervenors submitted applications to the county to develop a 13,000-square-foot apartment complexproviding workforce housing on the terraced portion of the subject property.¹ The subject property is zoned Pacific City/Woods Commercial One (PCW-C1) and, because residential uses in the PCW-C1 zone require a conditional use permit (CUP), intervenors applied for a CUP.² Intervenors also applied for variances to the applicable height and side yard setback standards.

The planning commission held public hearings on the applications and, on August 13, 2020, approved the variances and CUP. On September 1, 2020, petitioners appealed the planning commission decision to the board of commissioners. On September 9, 2020, the board of commissioners held a de novo hearing on the applications. On September 30, 2020, the board of commissioners held a second hearing on the appeal. After closing the oral and written record, the board of commissioners deliberated and tentatively approved the applications. On November 25, 2020, the county adopted written findings approving the CUP and variances.

This appeal followed.

FIRST ASSIGNMENT OF ERROR

Intervenors request that we reject the first assignment of error because it fails to comply with our rule at OAR 661-010-0030(4)(d). That rule requires that the petition for review clearly label the assignments of error and identify the applicable standards of review. OAR 661-010-0030(4)(d).³ Petitioners identify what appears to be all of LUBA's standards of review at the beginning of the first assignment of error, with no attempt to connect the arguments in the 26 pages that comprise the first assignment of error to any particular standards of review. Petitioners also fail to clearly identify whether their challenge is to a board of county commissioners interpretation or finding or the adequacy of evidence.

We will not reject the first assignment of error for failure to comply with our rule because, in the circumstances presented here, we view that failure as a technical violation, and intervenors have not established that that violation prejudices their substantial rights. However, we will consider only the argumentsstated with sufficient clarity "to afford intervenor an opportunity to respond." Heiller v. Josephine County, 23 Or LUBA 551, 554 (1992).

A. Application of TCLUO 8.030

Tillamook County Land Use Ordinance (TCLUO) 8.030 provides the criteria for a variance, including:

"(1) Circumstances attributable either to the dimensional, topographic, or hazardous characteristics of a legally existing lot, or to the placement of structures thereupon, would effectively preclude the enjoyment of a substantial property right enjoyed by the majority of landowners in the vicinity, if all applicable standards were to be met. Such circumstances may not be self-created.

"* * * * *

"(4) There are no reasonable alternatives requiring either a lesser or no VARIANCE."

The maximum building height in the PCW-C1 zone is 35 feet unless the property is an "ocean or bay front lot" in which case the maximum height is 24 feet. TCLUO 3.337(4)(k). The subject property's frontage on the Nestucca River results in it being a "bay front lot" under the county code, and it is therefore subject to the 24-foot height limit. TCLUO 3.337(4)(e) provides that, in the PCW-C1 zone, residential uses without a commercial element (for example, ground-floor retail) must comply with the development standards set out in the Pacific City/Woods High Density Residential (PCW-R3) zone. Because intervenors' proposed use is wholly residential, and because the subject property is on a corner lot, the required side yard setback on the street side of the subjectproperty is 15 feet. TCLUO 3.334(4)(e). Intervenors sought a height variance to allow a building height of 27 feet, 10 inches, based on considerations including costs and aesthetics. Intervenors also sought a setback variance to reduce the required side yard setback from 15 feet to 2 feet in order to avoid construction within the floodplain. In their first assignment of error, petitioners argue that the county misconstrued TCLUO 8.030(1) and (4) and made inadequate findings not supported by substantial evidence in granting those variances.

1. Standard of Review

We will reverse or remand a decision involving the application of a land use regulation if the decision is not in compliance with the applicable provisions of the land use regulation. ORS 197.835(8). We will also reverse or remand a decision where the local government improperly construed the applicable law. ORS 197.835(9)(a)(D).

Findings must "(1) identify the relevant approval standards, (2) set out the facts which are believed and relied upon, and (3) explain how those facts lead to the decision on compliance with the approval standards." Heiller, 23 Or LUBA at 556. The findings must be supported by substantial evidence, that is, evidence a reasonable person would rely upon to support a decision. Younger v. City of Portland, 305 Or 346, 358-60, 752 P2d 262 (1988).

2. Identification of Circumstances

As explained above, TCLUO 8.030(1) requires that the county find that the circumstances creating the need for the requested variance are not applicant-created. Petitioners argue that the board of commissioners' interpretation of its ordinance improperly construes TCLUP 8.030(1) because that interpretation is that the applicable land use standards themselves were the "circumstance" justifying the variances. However, the county did not, either expressly or impliedly, interpret the word "circumstance" as used in TCLUO 8.030(1). Rather, the county found:

"[TCLUO 8.030(1)] requires that the circumstances—that is, the 'dimensional, topographic, or hazardous characteristics of a legally existing lot, or the placement of structures thereupon'—cannot be self-created. [Intervenors] did not impose a riparian setback, floodplain or height limit on the property, nor [are intervenors] responsible for the topography of the property.

These circumstances are a result of FEMA regulations, county land use standards, [and] prior grading activity and are therefore not 'self-created.' Absent these 'circumstances' [intervenors] would be able to construct a building to the full height of the PCW-C1 zone and would be able to place the structure anywhere on the property, subject of course to other development standards. The Board finds that under the opponent's reading of this section, the 'self-created' provision would effectively preclude the county from granting almost any variance for any project because it is always possible to build a smaller or shorter building. The topography, floodplain and height restriction are identified as the 'circumstances.' These circumstances are not self-created and are imposed either as a function of the TCLUO or the 100-year floodplain boundary. The Board concludes that the 'circumstances' are not self-created." Record 35 (emphases added).

Read in context, the county's reference to regulations as circumstances merely identifies the regulations from which intervenors seek relief. The county found that the floodplain, topography, and prior grading are the circumstances creatingthe need for the variances. Because the property is within the floodplain, a circumstance intervenors did not create, development on part of the property is more hazardous than development on the remainder of the property. The county explained:

"[Intervenors have] testified that the 'circumstances' relevant to [their] variance request are related primarily to the 'hazardous' characteristic of the 100-year []floodplain on the property and [intervenors'] desire to avoid building in the floodplain. The second 'circumstance' is the topography of the site, which slopes and is somewhat benched as it slopes to the river. These condition of the lot push a building envelope to the westerly portion of the property, should the proposal attempt to limit the proximity of development from hazardous areas of the subject property.

"[Intervenors'] supplemental testimony shows roughly one-half of [intervenors'] property is within the FEMA 100-year floodplain. Roughly

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