Friends of Douglas County v. Douglas County
Where a ranch leases the subject property and adjacent properties for grazing, and where the adjacent properties are in capability classes I-IV/I-VI, the subject property is both within and adjacent to a 鈥渇arm unit,鈥 and is therefore 鈥渁gricultural land鈥 under OAR 660-033-0020(1)(b), even where the lease is not in writing, the owner of the subject property receives 鈥渄e minimis鈥 compensation from the ranch, the ranch does not object to an application to amend the subject property鈥檚 comprehensive plan designation and rezone the subject property for residential uses, and the subject property adds 鈥渘o significant economic value to grazing operations on the adjacent properties.鈥
Area(s) of Law:- Land Use
Oregon Coast Alliance v. Tillamook County
(1) Where a local code provision allows 鈥減ublic utility facilities, including substations and transmission lines,鈥 in a particular zone, the local government does not err by concluding that a utility facility is 鈥減ublic鈥 so long as it is necessary for the public health, safety, and welfare, even if it is not publicly owned; that a utility facility benefits the public health, safety, and welfare by increasing the overall capacity and redundancy within the larger utility system; and that a utility facility is 鈥減ublic鈥 even if it benefits the public generally and not just residents of the local community. (2) Goal 11 neither prevents the interconnection of communication facilities and services that serve both urban and rural areas nor limits the use of communication facilities and services to the needs of the rural area in which they are located. (3) Where a local code provision provides that a use not listed in a particular zone may be permitted in that zone if it is 鈥渙f the same general character, or has similar impacts on nearby properties, as do other uses permitted in the zone,鈥 the local government does not err by concluding that a particular use satisfies that criterion even if it has lesser negative impacts than permitted uses. (4) Where a local code provision provides that conditional uses may 鈥渘ot alter the character of the surrounding area in a manner which substantially limits, impairs or prevents the use of surrounding properties for the permitted uses listed in the underlying zone,鈥 the local government does not err by failing to separately determine whether a use would 鈥渓imit,鈥 鈥渋mpair,鈥 or 鈥減revent鈥 surrounding uses if it concludes that the use will not 鈥渁lter鈥 the character of the surrounding area at all.
Area(s) of Law:- Land Use
Anderson v. Yamhill County
(1) Where a local code provision requires that site design review be based on 鈥淸c]haracteristics of adjoining and surrounding uses,鈥 where lands adjoining and surrounding the subject property are zoned for farm uses, and where the purpose of those zoning districts and the comprehensive plan is to support farm use and to 鈥淸c]onserve . . . farmland for the production of crops and livestock,鈥 the local government does not err by characterizing the uses on adjoining and surrounding lands simply as farm uses, even where they contain farm dwellings. (2) Where a local code provision requires that site design review be based on 鈥淸c]omments and/or recommendations of adjacent and vicinity property owners whose interests may be affected by the proposed use,鈥 the local government does not need to specifically reference every comment received in the decision. (3) Where local code provisions require that site design review be based on 鈥淸p]rovision for adequate noise and/or visual buffering from noncompatible uses鈥 and 鈥淸c]omments and/or recommendations of adjacent and vicinity property owners whose interests may be affected by the proposed use,鈥 arguments that an opponent provided unrefuted evidence of noise and odor impact from the type of operation being proposed provide no basis for reversal or remand where that evidence relates to activity conducted by the prior owner of the subject property and a different operation, where the local government relied on an expert report concluding that the applicant鈥檚 projected noise levels and proposed odor control system comply with state requirements, and where the county imposed conditions requiring further noise and odor control measures.
Area(s) of Law:- Land Use
Currie v. Douglas County
(1) Where a local code provision requires that conditional uses be compatible with 鈥渆xisting adjacent permissible uses,鈥 and where that provision requires the local government to identify and describe adjacent uses, maps and photographs identifying adjacent uses by location, ownership, and character of use are sufficient to identify adjacent uses, and expert reports based on onsite testing, which conclude that adjacent residential uses will not be adversely impacted, are adequate to describe adjacent residential uses. However, relying on the fact that adjacent residential uses are more sensitive and less buffered than adjacent grazing uses, and therefore using the residential uses as a proxy for the grazing uses, is not adequate to describe the grazing uses without explaining the manner in which the grazing operation is run鈥攆or example, whether it is seasonal or includes accessory activities such as breeding or calving. (2) A county鈥檚 findings of compliance with the farm impacts test at ORS 215.296(1) are not based on substantial evidence where the county identifies grazing as the only surrounding farm or forest use but does not verify that the grazing operation is in fact limited to grazing, without other uses such as breeding, or explain why surrounding uses do not involve forest practices even though timber is occasionally cut on the grazing property and other surrounding properties are held as timber investments or are government-owned timber lands.
Area(s) of Law:- Land Use
Nehmzow v. Deschutes County
(1) While failure to preserve an issue for review under ORS 197.763(1) and ORS 197.835(3) removes that issue from the scope of LUBA鈥檚 review, it does not deprive LUBA of jurisdiction to review the appeal. (2) Where a petitioner cites to over a hundred pages in each of its preservation of error statements, but where respondents do not argue that the issues were not raised during the local proceeding, where petitioner provides more focused record citations in their reply brief, and where it is evident from the challenged decision itself that the issues were raised during the local proceedings, such failure to adequately specify where issues were preserved in the petition for review is a technical violation that does not prejudice respondents鈥 substantial rights. (3) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a 鈥測outh activity center,鈥 but where the local code does not define 鈥測outh activity center鈥 or use that phrase elsewhere, a county violates the codification requirement at ORS 215.416(8)(a)鈥攁nd therefore violates the requirement at ORS 475B.486(2) that local regulations of marijuana production facilities be 鈥渞easonable鈥濃攂y applying that criterion to an application to develop a marijuana production facility. (4) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a 鈥測outh activity center,鈥 but where the local code does not define 鈥測outh activity center鈥 or use that phrase elsewhere, a county violates the codification requirement at ORS 215.416(8)(a) by applying a list of factors derived from other quasi-judicial proceedings to assist in determining whether a specific use is a 鈥測outh activity center.鈥
Area(s) of Law:- Land Use
Waveseer of Oregon, LLC v. Deschutes County
(1) Counties are not prohibited as a matter of law from applying separation buffers to marijuana production facilities in EFU zones. (2) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a 鈥測outh activity center,鈥 but where the local code does not define 鈥測outh activity center鈥 or use that phrase elsewhere, a county violates the codification requirement at ORS 215.416(8)(a) by applying that criterion to an application. (3) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a 鈥測outh activity center,鈥 but where the local code does not define 鈥測outh activity center鈥 or use that phrase elsewhere, a county violates the codification requirement at ORS 215.416(8)(a) by applying a list of factors set out in a prior quasi-judicial decision to assist in determining whether a specific use is a 鈥測outh activity center.鈥 (4) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a 鈥測outh activity center,鈥 but where the local code does not define 鈥測outh activity center鈥 or use that phrase elsewhere, a county violates the goal-post rule at ORS 215.427(3)(a) by applying a list of factors set out in a prior quasi-judicial decision to assist in determining whether a specific use is a 鈥測outh activity center鈥 where that quasi-judicial decision was not issued until after the application was submitted. (5) Where a local code provision requires that marijuana production facilities be at least 1,000 feet from a 鈥測outh activity center,鈥 but where the local code does not define 鈥測outh activity center鈥 or use that phrase elsewhere, a governing body鈥檚 interpretation of that phrase to mean any place where youth activities occur鈥攅ven if that place was not 鈥渂uilt, constructed, installed, or established鈥 to serve or facilitate 鈥測outh activities,鈥 and even where other local code provisions using the term 鈥渃enter鈥 support a different interpretation鈥攊s inconsistent with the provision鈥檚 text and context.
Area(s) of Law:- Land Use