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Root v. Klamath County

Court of Appeals of Oregon

January 23, 2014

JAMES ROOT and VALERIE ROOT, Petitioners,
v.
KLAMATH COUNTY; and JWTR, LLC, Respondents

Argued and Submitted: December 10, 2013.

Page 632

Land Use Board of Appeals. 2013008.

Gregory S. Hathaway argued the cause for petitioners. With him on the brief were E. Michael Connors and Hathaway Koback Connors LLP.

Seth J. King argued the cause for respondent JWTR, LLC. With him on the brief were Michael C. Robinson and Perkins Coie LLP.

No appearance for respondent Klamath County.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.

OPINION

Page 633

[260 Or.App. 666] LAGESEN, J.

Petitioners seek judicial review of a final order of the Land Use Board of Appeals (LUBA) affirming an amendment by Klamath County to its comprehensive plan and zoning maps. The amendment added approximately 68,302 acres owned by intervenor-respondent JWTR, LLC to the county's Destination Resort Overlay (DRO) map of eligible lands. We affirm in part and reverse and remand in part.

I. BACKGROUND

The facts pertinent to our review are not disputed. JWTR owns land in Klamath

Page 634

County for which it seeks approval for the siting of a destination resort under ORS 197.435 to 197.467. To that end, JWTR applied to Klamath County for an amendment to the county's comprehensive plan and zoning maps. JWTR requested that the maps be amended to add 90,000 acres owned by JWTR to the county's DRO map of eligible lands. The county amended the maps in the manner requested. Petitioners, among others, appealed to LUBA.

On appeal, in Root v. Klamath County, 63 Or. LUBA 230 (2011) ( Root I ), LUBA concluded that the county's action was deficient in several respects and remanded to the county to address the identified deficiencies. Pertinent to the issues raised in this proceeding, LUBA concluded that the county was required to more thoroughly analyze whether any " tract" proposed to be included in the DRO map contained lands ineligible for destination resort siting under ORS 197.455(1)(e)[1] and, if so, whether ORS 197.435(7)[2] required exclusion of [260 Or.App. 667] the tract from the DRO map. Root I, 63 Or. LUBA at 236-38. LUBA also concluded that the county's Goal 5 analysis was deficient because (a) its findings failed to adequately account for the fact that " there [was] an inventoried Goal 5 resource, especially sensitive big game habitat, located on or near some of the proposed lands" ; and (b) the county failed to adequately analyze potential " conflicts with inventoried Goal 5 resources off-site from the proposed lands." Id. at 247-48. Finally, LUBA concluded that the county erred by deferring the assessment of ...


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