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Warren v. Washington County

Court of Appeals of Oregon

March 20, 2019

Jill WARREN, Petitioner,
v.
WASHINGTON COUNTY and Venture Properties, Inc., Respondents.

          Argued and submitted January 29, 2019.

          Land Use Board of Appeals 2018089

          Kenneth P. Dobson argued the cause and fled the brief for petitioner.

          No appearance for respondent Washington County.

          No appearance for respondent Venture Properties, Inc.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Affrmed.

         Case 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).

         Held: 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 development.

         Affrmed. [296 Or.App. 596]

          HADLOCK, P. J.

         Respondent 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 affirm.

         The 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.[1] 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.

         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. 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.[2]

         The 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.

         Petitioner's 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 ...


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