Kohler v. Jackson Cnty., LUBA No. 2021-024

• Decision Date: 28 May 2021
• Docket Number: LUBA No. 2021-024
• Parties: TIM KOHLER, Petitioner, v. JACKSON COUNTY, Respondent, and NOTION, LLC, Intervenor-Respondent.
• Court: Oregon Land Use Board of Appeals

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

LUBA No. 2021-024

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

May 28, 2021

FINAL OPINION AND ORDER

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 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

Petitioner appeals a hearing officer approval of a forest template dwelling.

MOTION TO INTERVENE

Notion, LLC (intervenor), the applicant below, moves to intervene on the side of the county. The motion is unopposed and is granted.

BACKGROUND

The subject property is a vacant, 20-acre parcel located immediately east of and abutting 5935 Coleman Creek Road. The subject property is zoned Woodland Resource, a zone which implements Statewide Planning Goal 4 (Forest Lands).¹ 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 is applied to

"all lands on which development can affect survival of Black-tailed deer or Roosevelt elk herds as described in the Natural and Historic Resources Element (Chapter 16) of the Comprehensive Plan. Such lands are identified as winter range habitat on base maps prepared by the Oregon Department of Fish and Wildlife (ODFW) and adopted by the Board of Commissioners as ASC 90-1." LDO 7.1.1 (C).

Intervenor submitted an application to develop a forest template dwelling on the subject property. On October 13, 2020, staff issued a tentative decision approving the application. Record 4, 256-70. On October 16, 2020, petitioner appealed staff's tentative decision. On December 7, 2020, the hearings officer held a public hearing on intervenor's application. On January 27, 2021, the hearings officer denied the appeal and approved the forest template dwelling application.

This appeal followed.

FIRST AND SECOND ASSIGNMENTS OF ERROR

The ASC 90-1 overlay approval criteria are set out in LDO 7.1.1(C). Petitioner's first assignment of error is that the hearings officer misconstrued LDO 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. Because resolving these assignments of error requires an understanding of the role that LDO 7.1.1(C)(6) plays in the county's habitat protection program and of the relationship between LDO 7.1.1(C)(4), (5), and (6), we begin with a discussion of those provisions.

LDO 7.1.1(C)(4) provides that the first dwelling on a lawfully created lot or parcel must be located within 300 feet of a public or private road, a driveway, or an "other developed access way," such as an easement.² LDO 7.1.1(C)(5)(c) provides that dwellings and other development reviewed through a Type 2 process must be located within 300 feet of a public or private road or a driveway, but it does not include the "other developed access way" option found in LDO 7.1.1(C)(4).³ Both LDO 7.1.1(C)(4) and (5) include language providing that an applicant unable to comply with those standards may seek approval under LDO 7.1.1(C)(6).

This is not our first review of the interaction of LDO 7.1.1(C)(4) and (5). See Kohler v. Jackson County, ___ Or LUBA ___ (LUBA No 2020-091, Jan 14, 2021) (Kohler I) (holding that, because forest template dwellings are subject to a Type 2 approval process under LDO Table 4.3-1, LDO 7.1.1(C)(5)(c), rather than LDO 7.1.1(C)(4), applies). Consistent with our holding in Kohler I, the hearings officer concluded that intervenor's Type 2 forest template dwelling application was subject to LDO 7.1.1(C)(5)(c). Intervenor's proposed forest template dwelling will be located within 300 feet of an "other developed access way" and would therefore be allowed under LDO 7.1.1(C)(4).⁴ However, because intervenor's proposed forest template dwelling is subject to LDO 7.1.1(C)(5)(c), both the dwelling and other development are required to be within 300 feet of a public or private road or a driveway. Because the application does not meet this standard, the hearings officer concluded that the application must comply with LDO 7.1.1(C)(6).

LDO 7.1.1(C)(6) provides:

"ODFW Approved Alternate Siting Plan

"Initial dwellings and other development may be sited in locations that do not conform with subsections (4) and (5) above when the applicant demonstrates at least one (1) of the following:

"a) The wildlife habitat protection measures required by Section 7.1.1(C)(4) will render the parcel unbuildable; or

"b) A written authorization approving an alternate siting plan is received from ODFW. Any such authorization must include a statement from ODFW that confirms habitat values and carrying capacity will be afforded equal or greater protection if the dwelling or other development is sited in the alternate location. The written authorization must be made on ODFW letterhead or forms and be signed by an ODFW official with authority to make habitat protection decisions. Authorization of an alternative dwelling location will not release an applicant from compliance with any other applicable standard of this Ordinance." (Emphasis in original.)

The hearings officer found that

"subsection 6(b) can be met with a condition of approval requiring submission of ODFW approval of an alternative siting plan prior to the issuance of a building permit. That is a clear and objective standard for which only documentation is necessary. Thus, such a condition does not require the county to provide additional public review. Given that the language between subsections (4) and (5) are similar and were approved by ODFW, the Hearings Officer finds that it is feasible for the applicant to obtain such an ODFW approval." Record 21.

Petitioner argues that the hearings officer misconstrued and the decision does not comply with LDO 7.1.1(C)(6) because, according to petitioner, that provision requires that the ODFW approval precede county review. Petitioner contends that, because LDO 7.1.1(C)(6) does not release an applicant from compliance with other applicable LDO provisions, the ODFW-approved site plan must be available during county review so that it may actually be evaluated for compliance with the other applicable LDO provisions. Absent an ODFW-approved site plan, petitioner maintains that the decision is not supported by substantial evidence.

We will reverse or remand a decision if we conclude that it is not in compliance with applicable land use regulations. ORS 197.835(8). We will also reverse or remand a decision that "[i]mproperly construe[s] the applicable law" or is "not supported by substantial evidence in the whole record." ORS 197.835(9)(a)(C), (D). While we agree with petitioner that the county must measure the site plan that it ultimately approves against the applicable LDO standards, we agree with intervenor that petitioner misreads the decision.

Condition of Approval 1 provides that "[t]he proposed residential development, including the dwelling, accessory structures and propane tank shall be located within the 200' x 300' building envelope shown on the approved site plan." Record 25. Condition of Approval 2 requires intervenor to submit a revised site plan complying with Condition 1 prior to the issuance of permits. Record 25-26. Condition of Approval 17 is that, "[p]rior to issuance of a building permit, [intervenor] shall submit documentation of ODFW approval of an alternative site plan for the proposed location of the building envelope." Record 29 (boldface omitted). Under these conditions of approval, construction of the proposed forest template dwelling requires that the ODFW-approved "alternative site plan" referenced in Condition 17 be the same as the county-approved site plan referenced in Conditions 1 and 2. The ODFW-approved site plan is an "alternative site plan" only in that, by approving it, ODFW would be authorizing a site plan that is an alternative to development sites within 300 feet of public and private roads and driveways, on which dwellings and other development are allowed by right under LDO 7.1.1(C)(5)(c). If ODFW does not approve development in the location approved by the county, intervenor would be unable to comply with Conditions 1 and 2 and would have to seek county approval of that new location prior to development. We agree with intervenor that nothing in the plain language of the applicable LDO provisions requires that the ODFW site plan be approved before county review of the application and that the hearings officer did not misconstrue LDO 7.1.1(C)(6).

Substantial evidence is evidence a reasonable person would rely on to make a decision. Dodd v. Hood River County, 317 Or 172, 179, 855 P2d 608 (1993); Younger v. City of Portland, 305 Or 346, 360, 752 P2d 262 (1988). Petitioner also argues in the first and second assignments of error that the decision is not supported by substantial evidence because the record does not contain (1) an ODFW-approved site plan or (2) evidence supporting the hearings officer's finding that ODFW approval is feasible. Petitioner maintains that the hearings officer erred in finding that ODFW approval is feasible because the county did not condition its own approval on intervenor...