and submitted January 29, 2019.
Use Board of Appeals 2018089
Kenneth P. Dobson argued the cause and fled the brief for
appearance for respondent Washington County.
appearance for respondent Venture Properties, Inc.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: Respondent Venture Properties applied for approval
of a six-lot subdivision on land located in Washington
County. A county hearings offcer approved the application,
and petitioner Warren appealed that opinion to the Land Use
Board of Appeals (LUBA). LUBA rejected each of
petitioner's challenges to the order, and petitioner now
seeks judicial review. Petitioner's challenges to the
LUBA order all relate to whether Washington County could
apply certain provisions of its community development code
(CDC) to prevent or restrict the proposed subdivision, which
is controlled in part by ORS 197.307. Petitioner asserts that
2017 amendments to ORS 197.307(4) did not have the effect of
extending that statute's "clear and objective"
requirement for housing development to land that is not
"buildable land" as defned in ORS 197.295(1).
Nothing in ORS 197.307(4), as amended in 2017, suggests that
the requirement that local governments regulate housing
development only through "clear and objective"
standards applies only to housing development on
"buildable land." Further, LUBA did not err when it
determined that pertinent aspects of the CDC are not
"clear and objective" and that, consequently, the
county could not apply those code provisions to the proposed
[296 Or.App. 596]
HADLOCK, P. J.
Venture Properties applied for approval of a six-lot
subdivision on land located in Washington County. A county
hearings officer approved the application and petitioner
Warren appealed that opinion to the Land Use Board of Appeals
(LUBA). LUBA rejected each of petitioner's challenges to
the order and petitioner now seeks judicial review. Neither
Venture Properties nor respondent Washington County has filed
a brief in this court. For the reasons set out below, we
pertinent facts are set out in LUBAs order. Venture
Properties applied for approval of a six-lot subdivision on a
2.8-acre parcel of land. A stream called Ash Creek runs
through the parcel and approximately half of the parcel is
included on a map of Significant Natural Resources (SNR) that
is part of the county's program for meeting Statewide
Planning Goal 5. The subdivision application proposed
setting aside 58 percent of the property from development,
including "the Ash Creek floodplain and associated
wetlands and vegetated corridors." The application
proposed "enhancement plantings" in a corridor
adjacent to Ash Creek as required by regulations of Clean
Water Services (CWS), the regional sewerage agency in that
area. A county hearings officer approved the application with
conditions, and LUBA affirmed the county's decision.
challenges to the LUBA order all relate to whether Washington
County could apply certain provisions of its community
development code (CDC) to prevent or restrict the proposed
subdivision. To provide context for petitioner's
arguments and LUBA's rationale for rejecting them, we set
out the pertinent statutory provisions-in particular, ORS
197.307(4)-before discussing petitioner's arguments in
detail. However, we note at the outset that at least some of
petitioner's arguments are premised on an assumption that
part of the 2.8-acre property at issue may not qualify as
[296 Or.App. 597] "buildable land" as that term is
defined in ORS 197.295(1). That is a fact that LUBA also
appears to have assumed for purposes of resolving
petitioner's challenges to the subdivision approval and,
accordingly, we do so, too.
extent to which the county's CDC provisions could apply
to the subdivision application is controlled in part by ORS
197.307, which is sometimes referred to as one of
Oregon's "needed housing statutes." See,
e.g., Warren v. Washington County, ___ Or LUBA ___, ___
(LUBA No. 2018-089, Nov 14, 2018) (slip op at 6) ("The
statutes that are set out at ORS 197.295 to 197.314 are
commonly referred to as the Needed Housing Statutes.").
The statute addresses, as "a matter of statewide
concern," the "availability of affordable, decent,
safe and sanitary housing opportunities for persons of lower,
middle and fixed income, including housing for
farmworkers." In various ways, the provisions of ORS
197.307 govern the circumstances under which local
governments may apply standards, conditions, and procedures
that have the effect of regulating or restricting the
development of housing. The legislature amended several of
the needed housing statutes in 2017. See Or Laws
2017, ch 745.
arguments focus on the requirements of ORS 197.307(4). Before
it was amended in 2017, ORS 197.307(4) provided that local
governments generally could restrict development of
"needed housing" on "buildable land" only
through application of ...