Kohler v. Jackson Cnty.

• Decision Date: 13 July 2021
• Docket Number: LUBA No. 2021-014
• Parties: TIM KOHLER, Petitioner, v. JACKSON COUNTY, Respondent, and JDRAEGER, LLC, Intervenor-Respondent.
• Court: Oregon Land Use Board of Appeals

TIM KOHLER, Petitioner, v. JACKSON COUNTY, Respondent,andJDRAEGER, LLC, Intervenor-Respondent.

LUBA No. 2021-014

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

July 13, 2021

FINAL OPINION AND ORDER

MEMORANDUM DECISION

(ORS 197.835(16))

Appeal from Jackson County.

Charles Sarkiss filed the petition for review and argued on behalf of petitioner. Also on the brief were Mark S. Bartholomew and Hornecker Cowling LLP.

No appearance by Jackson County.

Garrett K. West filed the response brief and argued on behalf of intervenor-respondent. Also on the brief was O'Connor Law, LLC.

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

ZAMUDIO, Board Chair, did not participate 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.

Petitioner appeals a hearings officer decision approving a forest template dwelling on a vacant, 61-acre parcel that is located immediately south of and abutting 3131 Deer Trail Lane. The subject property is zoned Woodland Resource, a zone which implements Statewide Planning Goal 4 (Forest Lands). Jackson County Land Development Ordinance (LDO) 5.2.2. The subject property is also in the Area of Special Concern 90-1 (ASC 90-1) overlay zone. ASC overlays are intended in part to protect site-specific environmental features through the application of additional development regulations and requirements.

The ASC 90-1 overlay approval criteria are set out in LDO 7.1.1(C).¹ Petitioner's first assignment of error is that the hearings officer misconstruedLDO 7.1.1(C)(6), that the decision does not comply with LDO 7.1.1(C)(6), and that the decision is not supported by substantial evidence. Petitioner's second assignment of error argues that the hearings officer's conclusion that it is feasible for intervenor to meet LDO 7.1.1(C)(6) is not supported by substantial evidence. Petitioner's third assignment of error is that the county misconstrued LDO 7.1.1(C)(6), that the decision is not in compliance with LDO 7.1.1.(C)(6), and that the decision is not supported by substantial evidence, because the county did not impose conditions necessary to ensure that intervenor will implement all provisions of the ODFW-approved site plan. Petitioner argues in their fourth assignment of error that the county's decision exceeded the county's jurisdiction because the decision does not ensure that the applicable criteria in the LDO are met. Petitioner argues in their fifth assignment of error that they were denied their right to participate in the review of the site plan that will ultimately be implemented.

ORS 197.835(16) provides, "[LUBA] may decide cases before it by means of memorandum decisions and shall prepare full opinions only in such cases as it deems proper." We do not believe a full opinion is proper in this case. We addressed the same assignments of error as applied to similar facts in Kohler v. Jackson County, ___ Or LUBA ___ (LUBA No 2021-022, May 28, 2021)(Kohler II), and affirmed the hearings officer's decision approving an application for a forest template dwelling. For the reasons set out in Kohler II, the assignments of error are denied.

The county's decision is affirmed.

1. LDO 7.1.1(C) provides, in relevant part:

"4) The standards of this subsection are deemed to comply with the deer and elk habitat protection measures recommended by ODFW and therefore do not require ODFW comment on Type 1 permits issued in conformance with this subsection. A first dwelling on a lawfully created lot or parcel will be located within 300 feet of an existing:

"a) Public or private road;

"b Driveway that provides access to an existing dwelling on another parcel (provided the new dwelling unit will not take access on it unless the driveway is improved to the private road standards of Section 9.5.3); or

"c) Other developed access way that existed as shown on the County 2001 aerials or other competent evidence (e.g., a road or driveway for a legal easement recorded prior to the aerial date).

"To be considered under the locational criteria of this subsection, any access must, at a minimum, conform with the emergency vehicle access standards of Section 9.5.4. When an initial dwelling is proposed to be sited in an alternative location that does not conform to the standards

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