BEFORE THE LAND USE BOARD OF APPEALS 1 2

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BEFORE THE LAND USE BOARD OF APPEALS
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OF THE STATE OF OREGON
CHERYLL KINNETT, WM. GARY KINNETT,
DAN WILLIS, LEAH WILLIS, CARRIE BOOTHE,
TERRY DAMEWOOD, CAROL DAMEWOOD,
and SHARYON DAKE,
Petitioners,
vs.
DOUGLAS COUNTY,
Respondent.
LUBA No. 2008-066
FINAL OPINION
AND ORDER
Appeal from Douglas County.
Jannett Wilson, Eugene, filed the petition for review and argued on behalf of
petitioners. With her on the brief was the Goal One Coalition.
No appearance by Douglas County.
Stephen Mountainspring, Roseburg, filed an amicus brief on behalf of Singletree
Investments LLC.
HOLSTUN, Board Member; RYAN, Board Chair; BASSHAM, Board Member,
participated in the decision.
REMANDED
08/05/2008
You are entitled to judicial review of this Order. Judicial review is governed by the
provisions of ORS 197.850.
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Opinion by Holstun.
NATURE OF THE DECISION
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Petitioner appeals a hearings officer’s decision that approves comprehensive plan and
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zoning map amendments to allow the future establishment of a truck maintenance and repair
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facility.
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AMICUS
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Singletree Investments LLC (Singletree), the applicant below, moved to intervene on
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the side of respondent in this appeal. Petitioners opposed that motion as untimely filed.
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Singletree requested that LUBA treat the intervenor-respondent’s brief that it filed on June
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23, 2008 as an amicus brief, if LUBA denied its motion to intervene. In an order dated June
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25, 2008, we denied the motion to intervene as untimely filed and granted Singletree’s
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request that its intervenor-respondent’s brief be accepted and treated as an amicus brief.
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FACTS
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The subject property is 3.62 acre parcel located east of the City of Roseburg on the
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north side of state highway 138 (North Umpqua Highway) at the intersection of Stocks Lane
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and North Umpqua Highway, within the Dixonville Rural Community. The property is
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located within an area where the county has adopted an irrevocably committed exception
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pursuant to Part II of Statewide Planning Goal 2 (Land Use Planning). ORS 197.732(2)(b);
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OAR 660-004-0028.
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designation for the property from Committed Residential – 2 Acre (RC2) to Industrial (IN)
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and changes the zoning map designation from Rural Residential (RR) to Rural Community
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Industrial (MRC). The applicant plans to construct a freight truck yard and terminal.
The challenged decision changes the comprehensive plan map
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The property is vacant and flat and has frontage on North Umpqua Highway. Access
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to and from the property from North Umpqua Highway will be across Stocks Lane, an
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existing private road that adjoins the subject property to the west, and a frontage road. The
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adjoining properties to the north and east are developed with single family dwellings. To the
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northwest, across Stocks Lane, is an MRC-zoned area that serves as a terminal for a logging
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company.
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The Douglas County Planning Commission heard and approved the application on
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January 17, 2008. The commission’s decision was appealed to the board of commissioners,
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which declined review on April 16, 2008. This appeal followed.
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FIRST ASSIGNMENT OF ERROR
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OAR chapter 660, division 12, the transportation planning rule (TPR), was adopted
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by the Land Conservation and Development Commission to implement Statewide Planning
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Goal 12 (Transportation). Under OAR 660-012-0060, the county was required to consider
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whether the comprehensive plan and zoning map amendments would “significantly affect”
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transportation facilities and, if so, adopt appropriate mitigation measures to ensure that the
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land uses allowed by the map amendments “are consistent with the identified function,
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capacity, and performance standards (e.g. level of service, volume to capacity ratio, etc.) of
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the facility.” Mason v. City of Corvallis, 49 Or LUBA 199, 215-16 (2005). In their first
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assignment of error, petitioners allege the county “misconstrued and misapplied” the TPR in
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two ways. First, petitioners argue the county erred by considering only the traffic impacts of
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the proposed use, rather that the traffic impacts of the uses that could be developed under the
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new MRC industrial zoning designation. Second, petitioners argue that the county’s finding
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that the proposal will not significantly affect transportation facilities is conclusory and is not
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supported by substantial evidence.
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A.
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Singletree first argues that petitioners waived the issues presented under the first
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Waiver
assignment of error:
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“[Petitioners] failed to raise this issue in their appeal of the planning
commission’s decision to the board of county commissioners. Record 48-49.”
Amicus Brief 2-3.
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The county did not file a brief in this appeal, and the only brief that was submitted in
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defense of the county’s decision is Singletree’s amicus brief. In Concerned Citizens v.
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Malheur County, 47 Or LUBA 208, 216 (2004), we refused to consider an argument that, if
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meritorious, would have required remand, where that argument was advanced only in an
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amicus brief and was not asserted by any of the parties to the appeal. In Friends of Bryant
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Woods Park v. City of Lake Oswego, 26 Or LUBA 594 (1993), we denied a motion to file an
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amicus brief, where the only issue raised in the amicus brief was not raised in the petition for
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review. Although petitioners do not respond to the waiver defense that Singletree presents in
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the amicus brief, based on our decisions in Concerned Citizens and Friends of Bryant Woods
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Park, we question whether amicus Singletree may assert a waiver defense in this appeal.
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Given our question, the fact that the parties do not address the question and the fact that we
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agree with Singletree regarding the merits of the first assignment of error, we turn to the
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merits and do not consider Singletree’s waiver defense further.
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B.
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On the merits, the county’s findings explain that North Umpqua Highway has a
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functional capacity of over 30,000 trips per day and the estimated current level of traffic is
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6,000 trips per day. The county then finds that it is estimated that the proposed freight truck
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yard and terminal would add “196” trips per day. Record 89 (finding number 13).1 Finding
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13 is, as petitioners point out, apparently based on the proposed use rather than the uses that
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are potentially allowable under MRC zoning. But the next finding, finding number 14, is not
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so limited:
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The Merits
“Given the limited potential for further development on the subject parcel due
to it size (2.40 acres), the location of the property next to existing industrial
uses and considering the range of uses that are allowed in the proposed MRC
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The planning commission adopted the planning staff report as part of its findings. Record 56. When the
board of commissioners declined to review the planning commission’s decision, the planning commission’s
decision was incorporated into the county’s final decision in this matter. Record 27.
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zone which might be developed on a site of its size, any likely future
industrial development would not generate traffic volumes that would exceed
the functional capacity of the North Umpqua Highway and the connecting
road system.” Record 90 (finding number 14).
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Finding number 14 seems to adopt the analysis that petitioners contend the county
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failed to adopt and concludes that the range of uses that would be allowed on the property
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under MRC zoning would not significantly affect North Umpqua Highway or “the
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connecting road system.” The record includes a letter from the Oregon Department of
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Transportation (ODOT) that concludes that “the proposed industrial land uses on the
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property are not expected to significantly affect the North Umpqua Highway’s function,
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capacity or performance standards.” Record 106. ODOT goes on to point out that Stocks
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Lane will need to be “made adequate to ensure the safety and operations of industrial traffic
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accessing the highway” and recommended several conditions of approval to ensure adequate
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access to North Umpqua Highway. Id. Petitioners do not make any attempt to explain why
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finding number 14 is inadequate to establish that the disputed map amendments will not
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significantly affect nearby transportation facilities or why the letter from ODOT and other
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evidence in the record is insufficient to establish that given the current significant excess
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capacity on North Umpqua Highway the disputed map amendments will not significantly
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affect nearby transportation facilities.
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The first assignment of error is denied.
SECOND AND THIRD ASSIGNMENTS OF ERROR
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LUDO 6.500(2) sets out standards for approval of comprehensive plan map
amendments. LUDO 6.500(2) requires, in part, that the county find:
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“(b)
That the amendment provides a reasonable opportunity to satisfy a
local need for a different land use. A demonstration of need for the
change may be based upon special studies or other factual
information[; and]
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“(c)
That the particular property in question is suited to the proposed land
use, and if an exception is involved, that the property in question is
best suited for the use as compared to other available properties.”
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We will refer to these two standards as the “local need” standard (LUDO 6.500(2)(b)) and
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the “suitability” standard (LUDO 6.500(2)(c)).
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A.
The Local Need Standard (Second Assignment of Error)
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To address the local need standard, the county adopted the following findings:
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“Finding No. 18
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“Plan policy for rural communities provides for additional industrial uses
adjacent to rural residential uses but urges care to minimize impacts on
residential lands.
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“Finding No. 19
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“The proposed amendments will further a county policy to encourage
industrial development in rural communities to support area logistics and
stimulate economic investment, thereby providing a reasonable opportunity to
satisfy a local need.
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“Finding No. 20
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“The applicant has demonstrated there is a public need for the proposed
amendment and has reasonably demonstrated that said public need would best
be served by changing the Plan designation of the property.” Record 91.
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Petitioners argue the county improperly relied on the applicant’s desire to develop the
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subject property, rather than an identified local need for the disputed development.
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Petitioners also argue the above-quoted findings are inadequate because they fail to identify
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the referenced plan policies and identify no evidence that the “proposed amendment meets a
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‘local need.’” Petition for Review 7.
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We agree with petitioners that it appears that the county relied almost entirely on the
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applicant’s desire to develop the subject property, rather than any identified “local need for a
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different land use” “[t]hat the amendment provides a reasonable opportunity to satisfy,” as
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LUDO 2.500(2)(b) requires. The comprehensive plan policies that are referenced in findings
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18 and 19 are not specifically identified in the decision. In its brief, amicus sets out Douglas
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County Comprehensive Plan (DCCP) language and speculates that the authors of findings 18
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and 19 had that plan language in mind. We set out that language below and have added our
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own numbers to make it easier to refer to that plan language:
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1.
“[H]elp assure the maintenance and expansion of existing industry or
the establishment of new industry on lands that are committed to and
designated for an industrial use.”
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2.
“Develop and maintain an inventory of Residential, Industrial, and
Commercial lands in each Rural Community to address any needed
land supplies that may be identified in future updates and changes to
the County Comprehensive Plan. Providing for other commercial and
industrial uses within or near existing Rural Communities is also
important to each of the Rural Communities and the economy of
Douglas County.”
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3.
“To provide the opportunity for rural industrial uses while protecting
existing plans for industrial uses within Urban Unincorporated Areas
(UUA’s) and Urban Growth Boundaries (UGB’s).”
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4.
“Industrial uses shall be limited to small scale low impact use as that
term is defined in OAR 660-22.” Amicus Brief 7.
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Number 1 above sets out the “Intent” of the DCCP Industrial designation in rural
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communities. Prior to the disputed decision, the subject property was not designated for
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industrial use and the county’s findings make no attempt to show that the vacant subject
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property is committed to industrial use. Even if the subject property was committed to and
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designated for industrial use, an intent to maintain and expand industry on lands that are
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“committed to and designated for industrial use” has no obvious bearing on whether there is
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a “local need for a different land use” on the subject property or whether the subject property
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would provide “a reasonable opportunity to satisfy” such a local need if it exists.
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Number 2 expresses a DCCP Policy of developing and maintaining an inventory to
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address needed land supplies. The inventory referenced in number 2 might lend some
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support to a finding of local need, but the challenged decision does not disclose or discuss
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what that inventory shows for Dixonville Rural Community.
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That the county has a policy “[t]o provide the opportunity for rural industrial uses,”
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Number 3 above, does not establish that there is a “local need for a different land use” on the
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subject property or that the subject property would provide “a reasonable opportunity to
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satisfy” such a local need if it exists.
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Finally, the policy expressed in Number 4 above (to limit rural industry to “small
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scale low impact use”) has absolutely no bearing on whether there is a “local need for a
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different land use” on the subject property or whether the subject property would provide “a
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reasonable opportunity to satisfy” such a local need if it exists.
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We do not mean to foreclose the possibility that the DCCP may include a policy that
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establishes that the disputed comprehensive plan map amendment complies with the LUDO
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6.500(2)(b) local need standard. However, it seems highly unlikely that the county has
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adopted such a DCCP policy. Whether the amendment “provides a reasonable opportunity to
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satisfy a local need for a different land use” seems to call for findings of fact and property-
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specific reasoning to establish (1) that there is a local need for a different land use and (2)
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that the amendment “provides a reasonable opportunity to satisfy [the identified] local need.”
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The second sentence of LUDO 6.500(2)(b) certainly suggests that those findings will require
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an evidentiary showing of some sort that is geographically specific. The findings rely
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entirely on support from comprehensive policies that lend no particular support, and do not
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cite any other evidence that would support a finding of local need.
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The second assignment of error is sustained.
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B.
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As explained above, LUDO 6.500(2)(c) requires that the county find that that the
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subject property “is suited to the proposed land use.”2 Because no exception is required, the
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alternative sites comparison required by the last clause of LUDO 6.500(2)(c) does not apply.
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Petitioners argue the county “misconstrued” the LUDO 3.38.100(2)(b) and 6.500(2)(c)
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The Suitability Standard (Third Assignment of Error)
A similar suitability standard is imposed on the zoning map amendment by LUDO 3.38.100(2)(b), which
requires that the county find “[t]he site is suitable to the proposed zone[.]”
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suitability standards and that the county’s findings concerning the suitability standards are
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not supported by substantial evidence.
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For some reason, the county combined its findings concerning the local need and
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suitability standards under a single heading. Record 91-93. Petitioners fault the county for
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combining its findings concerning the local need and suitability standards, because they
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impose somewhat different standards. However, the county’s organization of its findings,
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alone, provides no basis for reversal. In its suitability findings, the county first agrees with
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the applicant that
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“The property is well suited for the proposed use. It is flat, bordering [a] four
lane state highway..and bordering other MRC zoned property.” Record 91.
The county’s suitability findings also include the following:
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“The proposed amendment places rural community industrial in the portion of
the Dixonvillle Rural Community near existing industrial uses. However,
lands immediately adjacent to the proposed amendment are designated rural
residential. * * * In order to minimize conflicts between the proposed
industrial use and the existing adjacent residential uses, it is appropriate to
[apply] additional standards to the proposed freight truck yard and terminal
business to ensure orderly development and sufficient buffers. After
reviewing correspondence from neighbors of the proposed facility voicing
concerns over its compatibility with adjacent residential uses, the Design
Review Overlay was deemed the most appropriate remedy for potential
conflicts between the proposed freight truck yard and terminal and nearby
residential uses. Therefore, a Design Review Overlay (AC) will be applied to
the property to ensure the minimization of conflicts between the proposed
industrial use and the existing adjacent residential uses. * * *
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“* * * * *
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“If the Plan Amendment and Zone Change proposed herein is approved,
application of the AC overlay to the property will ensure that issues relating to
the proposed use including vehicular access, aesthetics and land use
compatibility are addressed with respect to adjacent and nearby rural
residential land uses.” Record 92-93.3
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The challenged decision imposes the following conditions:
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Petitioners cite concerns that were expressed below concerning traffic impacts and
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water and runoff concerns. Petitioners contend the county improperly deferred its finding
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concerning the LUDO 3.38.100(2)(b) and 6.500(2)(c) suitability standards to the design
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review overlay and drainage plan review, which is a ministerial process at which they will
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have not participatory rights.
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If petitioners were correct that the county deferred to a ministerial, non-public
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process its finding that the LUDO 3.38.100(2)(b) and 6.500(2)(c) suitability standards are
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met in this case, remand would be required. The county’s finding concerning the LUDO
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3.38.100(2)(b) and 6.500(2)(c) suitability standards must be made as part of the public
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process that applies to comprehensive plan and zoning map amendments.
Rhyne v.
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Multnomah County, 23 Or LUBA 442, 447-48 (1992). The county could defer the required
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finding, but in that event it would have to ensure the required findings would later be made in
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a similarly public process where petitioners would have participatory rights.
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Deschutes County, 216 Or App 150, 162, 171 P3d 1017 (2007). However, the requirement
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that the county’s finding concerning the LUDO 3.38.100(2)(b) and 6.500(2)(c) suitability
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standards must be made as part of the public process that led to the decision that is before us
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in this appeal does not mean the county cannot, as part of those findings, recognize and rely
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in part on additional ministerial review and approvals that will be required for development
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of the property. The county did not err by recognizing in its findings concerning LUDO
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3.38.100(2)(b) and 6.500(2)(c) that additional ministerial review will be required and that the
Gould v.
“1.
Application of the Design Review Overlay shall include, among other things,
fencing or vegetative screening installed along the north and east side of the subject
property to minimize adverse impacts on nearby properties.
“2.
A drainage plan covering the entirety of the subject property must be completed to
the satisfaction of the Douglas County Planning Department as part of a ministerial
review under the Design Review Overlay prior to any structural development on the
subject property.” Record 30.
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purpose of that review is to address, among other things, ingress, egress and compatibility
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with adjoining properties.
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Petitioners fail to appreciate how subjective the LUDO 3.38.100(2)(b) and
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6.500(2)(c) suitability standards are. The requirement that the subject site be suitable for the
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proposed comprehensive plan and zoning map designations does not mean that the site can
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have no unresolved limitations or shortcomings. LUDO 3.38.100(2)(b) and 6.500(2)(c) only
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require that the county reasonably conclude that the subject property is suitable for the
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proposed zoning designation and land use. In the findings quoted above, the county found
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that the subject property “is well suited for the proposed use.” Record 91. That finding
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appears to be based in large part on the fact that the site is flat and vacant, presumably
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making it relatively easy and less expensive to develop for industrial use than a developed
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site with uneven topography. The county also found that the subject property is located next
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to a major transportation facility that will provide needed access. The county recognized that
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concerns had been raised about potential traffic impacts, impacts on adjoining residences and
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drainage impacts. The county imposed conditions of approval to ensure that a subsequent
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ministerial review addresses those concerns. We conclude that a reasonable decision maker
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could rely on the property’s physical and locational advantages and the ministerial review
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that will occur later in the design review overlay process to find in the challenged decision
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that the site is suitable for the proposed zoning map designation and land use, as required by
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LUDO 3.38.100(2)(b) and 6.500(2)(c). We do not agree with petitioners that the county
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deferred the required finding or that a reasonable person could not find that the subject
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property is suitable for the proposed zoning designation and land use, based on the
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evidentiary record that supports the challenged decision.
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The third assignment of error is denied.
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The county’s decision is remanded.
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