Sisters Forest Planning Committee v. Deschutes County

108 P.3d 1175, 198 Or. App. 311
CourtCourt of Appeals of Oregon
DecidedMarch 16, 2005
Docket2004-073; A126559
StatusPublished
Cited by1 cases

This text of 108 P.3d 1175 (Sisters Forest Planning Committee v. Deschutes County) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sisters Forest Planning Committee v. Deschutes County, 108 P.3d 1175, 198 Or. App. 311 (Or. Ct. App. 2005).

Opinion

BREWER, C. J.

The Land Use Board of Appeals (LUBA) affirmed in part, reversed in part, and remanded to Deschutes County the county’s approval of a conditional use permit to build a dwelling on a 320-acre tract of forest land. Sisters Forest Planning Committee (petitioner) seeks review, challenging, among other things, LUBA’s determination that the county had imposed sufficiently “clear and objective” fire prevention and suppression conditions. The county cross-petitions for review, arguing that LUBA erred in remanding the matter for further consideration of certain other Deschutes County Code (DCC) requirements. As discussed below, we conclude that LUBA erred in determining that the county’s fire prevention and suppression conditions were adequate. We conclude, however, that LUBA was correct in remanding to the county for further consideration of the other relevant code requirements. We therefore reverse on the petition, affirm on the cross-petition, and remand.

The basic facts are not in dispute; we take them from LUBA’s opinion.

“The subject property is located approximately three miles northwest of the westernmost edge of the City of Bend’s urban growth boundary. The property is approximately 320 acres in size and is zoned Forest Management (F-l). The property is also in a Wildlife Area Combining Zone due to its location within the Tumalo Deer Winter Range. The property is currently unoccupied and has no structures. The property is forested and was most recently logged in 1992 and 2002. The topography of the property is varied and includes a small canyon with steep slopes. Sisters Mainline Road, a major Forest Service Road running between Bend and Sisters, runs along the southern and western boundaries of the property. The property is surrounded by other unoccupied forestlands. Upon receipt of the application, the county made an administrative decision rather than refer the case directly to the hearings officer. The application was approved without a hearing, and the decision was appealed to the hearings officer. The hearings officer also approved the application. Petitioner appealed the hearings officer’s decision to the Board of [314]*314County Commissioners (BCC), but the BCC declined to review the hearings officer’s decision.”

Before LUBA, petitioner challenged the county’s conditions of approval. The conditions were based in large part on a January 25,2004, letter from the applicant’s expert, John Jackson, which contained several recommendations pertaining to fire prevention and suppression. In approving the application, the county imposed as a condition that the applicant “implement all of the recommendations” in Jackson’s letter. Petitioner argued that the recommendations in the letter were so vague, imprecise, and hortatory that they could not function as legally sufficient conditions of approval.

LUBA treated petitioner’s challenge as though it posited a general requirement that conditions of approval be “clear and objective” and concluded that no such legal requirement was applicable here. Cf. ORS 197.307(3)(b) (requiring approval standards for certain types of housing within urban growth boundaries to be “clear and objective”); ORS 197.685 (requiring approval standards for farmworker housing to be “clear and objective”); ORS 215.296(2) (requiring conditions imposed in context of approval of certain uses in exclusive farm use zones to be “clear and objective”). LUBA cautioned that a condition of approval “may be drafted so poorly that it may be inadequate to ensure compliance with an applicable approval standard it has been imposed to address” and that the better practice would have been to set out specific recommendations adopted from Jackson’s letter rather than simply to refer to the letter in its entirety. LUBA concluded, however, that the recommendations in the letter were sufficiently clear to suffice as conditions of approval.

On judicial review, petitioner acknowledges that there are statutorily imposed requirements for “clear and objective” conditions of approval in only a few contexts. It argues, however, that the same specificity and clarity that the Supreme Court found necessary for findings in Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or 3, 21, 569 P2d 1063 (1977), should also be required for [315]*315conditions imposed in order to satisfy permit approval criteria.1 Petitioner complains that the vagueness of many of the statements in Jackson’s letter, as well as the difficulty in determining which portions of the letter are recommendations and which are analysis or mere commentary, make it impossible to determine precisely what the letter, and thus the county’s imposed conditions, require. Petitioner also specifically challenges a recommendation to treat the five- to ten-acre triangle around the proposed residence for hazardous fuels, on the ground that the recommendation involves adjoining properties and that it therefore is uncertain that the applicant will be able to implement it. The county responds that conditions need not be stated with the specificity required for findings and that the conditions imposed here — including those set out as recommendations in Jackson’s letter and incorporated into the hearings officer’s decision — are adequately stated.

We generally agree with petitioner that specificity and clarity are desirable to ensure that the imposed conditions are properly understood not only by the entity responsible for complying with them but also by potential challengers of a permit subject to conditions. Adequate specificity and clarity promote the proper application of relevant land use criteria and proper administration of the permit; conversely, they assist in avoiding unnecessary challenges to land use [316]*316decisions. With that general view in mind, we turn to the fire prevention and suppression conditions imposed here.

The county hearings officer’s decision approving the permit relied on two separate documents addressing fire prevention and suppression: the county planning department’s administrative decision and Jackson’s letter. The hearings officer stated that approval was

“SUBJECT TO THE FOLLOWING CONDITION OF APPROVAL IN ADDITION TO THE CONDITIONS OF APPROVAL INCLUDED IN THE ADMINISTRATIVE DECISION:
“1. The applicant/owner shall implement all of the recommendations contained in the letter from John Jackson dated January 25, 2004, and included in the record as the applicant’s Exhibit 101. In the event there is a conflict between Mr. Jackson’s recommendations and the conditions of approval included in the administrative decision, Mr. Jackson’s recommendations shall control.”

The conditions in the administrative decision are stated succinctly and in terms responsive to specific county ordinance sections addressing fire siting standards. For example, DCC 18.36.070(B)(1) through (3) require a primary firebreak of not less than 10 feet wide containing nonflammable materials; a secondary firebreak of not less than 20 feet outside the primary firebreak; and a fuel break extending a minimum of 100 feet in all directions around the secondary firebreak.2

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Stop Dump Coalition v. Yamhill County
391 P.3d 932 (Court of Appeals of Oregon, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
108 P.3d 1175, 198 Or. App. 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sisters-forest-planning-committee-v-deschutes-county-orctapp-2005.