HomeMy WebLinkAboutExhibit E - Court of AppealsFILED: November 7, 2007
IN THE COURT OF APPEALS OF THE STATE OF OREGON
ANNUNZIATA. GOULD,
• Petitioner
Cross -Respondent,
v.
DESCHUTES COUNTY and CENTRAL OREGON IRRIGATION DISTRICT,
Respondents,
and
• THORNBURGH RESORT COMPANY, LLC.,
Respondent
Cross -Petitioner. .
•
Land Use Board- of Appeals
2006100
•
STEVE MUNSON,
Petitioner below,
v.
DESCHUTES COUNTY,
Respondent below,
and
THORNBURGH RESORT COMPANY, LLC; and CENTRAL OREGON IRRIGATION
DISTRICT,
Intervenors below.
Land Use Board of Appeals
2006101
A135856
Argued and submitted August 10, 2007. •
Paul. D. Dewey argued the cause and filed the briefs for petitioner - cross -
respondent.
Elizabeth A. Dickson and Hurley Re & Gruetter PC filed the brief for respondent
Central Oregon Irrigation District.
Peter Livingston argued the cause for respondent - cross -petitioner. With him on
the brief was Schwabe, Williamson & Wyatt, P.C.
Laurie A. Craghead waived appearance for respondent Deschutes County.
Before Edmonds, Presiding Judge;.and Brewer, ChiefJudge, and Sercombe, Judge.
SERCOMBE, J.
Reversed and remanded on petition; affirmed on cross. -petition.
DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS
Prevailing party: Petitioner on petition; cross -respondent on cross -petition.
[ I No costs allowed.
[x1 Costs allowed, payable by: Respondents on petition; cross -petitioner on cross -
petition
[ 1 Costs allowed; to abide the outcome on remand, payable by:
SERCOMBE, J.
2 Petitioner Gould seeks review of an opinion and order of the Land Use
3 Board of Appeals (LUBA). LUBA generally upheld a county decision to approve an
4 application by respondent Thornburgh Resort Company, LLC (Thornburgh) for a
5 conceptual master plan for a destination resort. However, LUBA remanded the county's
6 decision for the adoption of additional findings and conditions to justify satisfaction of an
7 approval standard on required overnight lodging accommodations. Gould pursues review
8 in this court in order to obtain a more extensive remand to the county. Gould contends
9 that LUBA en -ed in approving the county's adopted findings and conditions on the
10 location of access roads for the development and on the necessary mitigation of the
11 project's effects on fish and wildlife. Thornburgh cross -petitions for review of LUBA's
12 characterization of the county's requirements for the size of the development lots.
13 Because LUBA erred in its review of the county's determinations on mitigation of
14 wildlife impacts, we reverse and remand. We otherwise affirm on Gou1d's remaining
15 assignments of error and on the cross -petition for review.
16 Thornburgh applied to Deschutes County for approval of a conceptual
17 master plan for a destination resort. The resort, to be located on about 1,970 acres of land
18 west of the City of Redmond, is proposed to contain 1,425 dwelling units, including 425
19 units for overnight accommodations and a 50 -room hotel. The resort plans also include
20 three golf courses, two clubhouses, a community center, shops, and meeting and dining
21 facilities. The resort property is bordered on three sides by land owned by the Bureau of
1
1 Land Management. The land is zoned for exclusive farm use but designated "destination
2 resort" in an overlay zone.
3 State and local law contain special standards for approving destination
4 resort developments. ORS 197.435 to 197.467; OAR 660-015-0000(8) (Statewide
5 Planning Goal 8 (Recreational Needs)); Deschutes County Code (DCC) Chapter 18.113.
6 The county's development code requires a three-step approval process for a destination
7 resort. The first step is consideration and approval of a "conceptual master plan" (CMP).
8 DCC 18.113.040(A). The.code sets out a number of detailed requirements for an
9 application for a CMP; DCC 18.113.050, as well as extensive approval standards for the
10 plan, DCC 18.113.060 and DCC 18.113.070. An applicant for CMP must submit
11 evidence of compliance with those requirements at a public hearing. Any approval must
12 be based on the record created at that hearing. DCC 18.113.040(A). Once the CMP. is
13 approved, it becomes the standard for staff evaluation of a "final master plan," the second
14 step in the process. Any "substantial change" in the CMP must be reviewed and approved
15 using the same process as the original plan approval. DCC 18.113.080. The third
16 approval step for a destination resort is allowance of components or phases of the resort
17 through site plan or land division approvals. DCC 18.113.040(C).
18 Following review of the proposed CMP by a local hearings officer, the
19 board of county commissioners held hearings and approved the proposed CMP with
20 conditions. The primary issue in this case concerns whether the county's adopted fmdings
21 and conditions on the mitigation of the development's effects on fish and wildlife were
2
1 sufficient to justify that approval.
2 The development code requires the CMP application to include a
3 description of the wildlife resources of the site and the effect of the destination resort on
4 those resources, the "methods employed to mitigate adverse impacts on the resources,"
5 and a "proposed resource protection plan to ensure that important natural features will be
6 protected and maintained." DCC 18.113.050(B)(1). The approval criteria include a
7 requirement that thedecision maker "find from substantial evidence in the record" that
8 "[a]ny negative impact on fish and wildlife resources will be completely mitigated so that
9 there is no net loss or net degradation of the resource." DCC 18.113.070(D).
10 The county's findings on the submission requirements of DCC
11 18.113.050(B)(1) with respect to wildlife note the preparation of a• "Habitat Evaluation
12 Procedures" analysis for the site that described "project impacts and corresponding
13 mitigation measures." The findings list the types of wildlife on the site and the short-term
14 and long-term impacts on wildlife and fish by the proposed development. The
15 explanation concludes:
16 "According to Tetra Tech [respondent's consultant], approximately
17 2,149 off-site acres will be needed to offset loss of habitat values on the
18 subject property by virtue of the proposed development. * * As discussed
19 under DCC 18.113.070 M., the BLM MOU [(Bureau of Land Management
20 memorandum of understanding)] requires [Thornburgh] to complete a
21 wildlife mitigation plan. [Thornburgh] and BLM are currently evaluating
22 the viability of implementing the agreed mitigation measures on federal
23 property in the vicinity of the resort that is commonly known as the 'Masten
24 Allotment."'
25 The findings on compliance of the plan with the DCC 18.113.070(D) "no
3
1 net loss" requirement conclude:
2 "The HEP analysis will be used to guide mitigation activities. Due
3 to the size and scope of the project and the related impact from cessation of
4 some cattle -grazing activities, [Thornburgh] is participating with a multi -
5 agency group to finalize the mitigation area. This includes representatives
6 • of ODFW [(Oregon Department of Fish and Wildlife)], BLM, Tetra Tech
7 and [Thornburgh].
8
9 "In a letter to the County dated February 9, 2005, Steven George,
10 Deschutes District Wildlife Biologist with ODFW, states that ODFW is
• 11 working with. [Thornburgh] to develop an acceptable wildlife report with
12 mitigation measures and expresses the view that'[Thornburgli] will be able
13 to develop an acceptable program to mitigate the impacts.' * * *
14
15 "The Board finds that, as stated by ODFW, it is feasible to mitigate .
16 completely any negative impact on identified fish and wildlife resources so
17 that there is no net loss or net degradation of the resource. The MOU
18 between the BLM and [Thornburgh] requires [Thornburgh] to complete a
19 wildlife mitigation plan that will be reviewed and approved by both ODFW
• 20 and BLM. * * * The Board imposes as a condition below that the mitigation
21 plan adopted by [Thornburgh] in consultation with Tetra Tech, ODFW and
22 the BLM be adopted and implemented throughout the life of the resort."
23 In addressing a related requirement that the "resort mitigate any demands
24 that it creates on publicly -owned recreational facilities on public lands in the surrounding
25 area," the county decision details the content of the Bureau of Land Management (BLM)
26 memorandum of understanding (MOU):
27 "In Section I1.7 of the MOU, [Thornburgh] and BLM agree to work
28 cooperatively to complete a wildlife mitigation plan to compensate for
29 impacts related to the resort. The MOU outlines specific mitigation
30 measures to be undertaken by [Thornburgh] to mitigate the impacts of resort
31 development on surrounding federal recreation facilities. * * * [The] BLM
32 identified federal property located to the south and east (commonly known
4
1 as the 'Masten Allotment') as an area to be managed with an emphasis on
2 the preservation and enhancement of wildlife habitat. [Thornburgh], BLM
3 and ODFW are working together to evaluate whether [Thornburgh's]
4 wildlife mitigation obligation can be implemented in this location. * * *
5 "The record contains a report * * * from Tetra Tech, which describes
6 habitat, land uses and mitigation measures to be implemented on the federal
7 lands surrounding the resort. The Tetra Tech report, the BLM MOU and
8 the AAC Agricultural Assessment identify surrounding land uses and
9 potential conflicts between the resort and adjacent uses within 600 feet.
10 The data, analysis and mitigation measures contained in the Tetra Tech
11 report have been incorporated into the final MOU between [Thornburgh]
12 and BLM."
13 Consistently with those findings, the county approved the conceptual master
14 plan conditionally, requiring among other things that
15 "[Thornburgh] shall abide at all times with the MOU with BLM, dated
16 September 28, 2005, regarding mitigation of impacts on surrounding federal
17 lands, to include wildlife mitigation and long-range trail planning and
18 construction of a public trail system. The mitigation plan adopted by
19 [Thornburgh] in consultation with Tetra Tech, ODFW and the BLM shall
20 be adopted and implemented throughout the life of the resort."
21 The memorandum of understanding requires Thornburgh to complete a
22 wildlife impact mitigation plan that "will specify mitigation measures that are sufficient to
23 insure that there is no net loss of wildlife habitat values as a result of the proposed
24 development." The agreement requires approval of the plan by ODFW and BLM and
25 commits Thornburgh to "work cooperatively with ODFW and BLM to determine the
26 specific locations where the mitigation plan will be implemented." The agreement
27 provides that certain mitigation measures may be undertaken within the Masten
28 Allotment, and those measures "may include" trail construction, removal of old trails,
29 fencing, vegetation thinning and management, and noxious weed controls.
5
1 . Gould sought review of the county's land use decision by LUBA. Gould's
2 petition for review set out 13 assignments of error by the county. Gould's eleventh
3 assignment of error to LUBA claimed that the county "applied inappropriate legal
4 standards and failed to make proper findings based on substantial evidence in determining
5 that fish and wildlife protection criteria are met." Gould asserted that the county's
6 findings on the feasibility of complying with the fish and wildlife protection criteria were
7 not supported by substantial evidence and that the "deferral of compliance with a criterion
8 and reliance on an agency t� decide compliance with the [cJounty's requirements is not
9 permissible."
10 LUBA determined that the local government record contained substantial
11 evidence to support the county's findings on compliance with DCC 18.113.070(D). It
12 concluded:
13 "Where the county finds that it is feasible to satisfy a mandatory
14 approval criterion, as the county did here with regard to DCC
15 18.113.070(D), the question is whether that finding is adequate and
16 supported by substantial evidence. Salo v. City of Oregon City, 36 Or
17 LUBA 415, 425 (1999). Here, Thornburgh supplied the Wildlife Report to
18 identify the negative impacts on fish and wildlife that canbe expected in
19 developing Thornburgh resort. The report also describes how Thornburgh
20 proposes to go about mitigating that damage, both on-site and off-site. In
21 response to comments directed at that report, Thornburgh has entered into
22 discussions with ODFW and a MOU with the BLM to refine that proposal
23 and come up with better solutions to ensure that expected damage is
24 completely mitigated. ODFW and BLM have both indicated that they
25 believe such solutions are possible and likely to succeed. We conclude that
26 the county's finding regarding DCC 18.113.070
s supported by
27 substantial evidence and is adequate to explain how) 1Thornburgh Resort will
28 comply with DCC 18.113.070(D).
29 "Had Thornburgh not submitted the Wildlife Report, we likely would
6
1 have agreed with petitioners that a county finding that it is feasible to
2 comply with DCC 18.113.070(D) would likely not be supported by
3 substantial evidence. Even though ODFW and BLM have considerable
4 expertise on how to mitigate damage to fish and wildlife, bare assurances
5 from ODFW and BLM that solutions are out there would likely not be the
6 kind of evidence a reasonable person would rely on to find that the damage
7 that Thornburgh resort will do to fish and wildlife habitat can be completely
8 mitigated. But with that report, the dialogue that has already occurred
9 between Thornburgh, ODFW and BLM, the MOU that provides further
10 direction regarding future refinements to ensure complete mitigation, and
11 the optimism expressed by the agencies involved, we believe a reasonable
12 person could find that it is feasible to comply with DCC 18.13.070(D). "
13 On review, Gould complains that LUBA erred "in determining that the
14 County's findings and evidence concerning feasibility of mitigation for the project's
15 negative impacts on fish and wildlife satisfy the applicable approval standard."' Gould
16 contends that the approval standard was not met because there was insufficient evidence
17 in the record to show that any particular wildlife impact mitigation plan was feasible and
18 that LUBA erred in not requiring the county to specify a particular mitigation plan and
19 subject that plan to public notice and county hearing processes. Respondents' counter
20 that our standard of review is whether LUBA correctly applied the "substantial evidence"
21 test in reviewing the findings that a wildlife impact mitigation plan is "feasible."
22 According to respondents, LUBA properly applied the substantial evidence test.
Gould raises two other assignments of error. Gould contends that LUBA
erred in upholding the county's approval of destination resort roads not located on land
zoned for destination resorts and in concluding that there was no need for an exception to
Goal 3 in order to locate access roads to the resort on land zoned for exclusive farm uses.
We affirm as to those assignments of error without discussion.
2 Respondents, as used herein, refers to Central Oregon Irrigation District and
Thornburgh Resort Company, LLC. •
1 Alternatively, respondents further claim that public review of the feasibility of a
2 mitigation plan was sufficient, the county's imposed condition was adequate and specific
3 enough to assure compliance with the approval standard, and the county did not
4 improperly delegate the issue of compliance with an approval standard to another agency.
5 The issue, then, is whether LUBA erred in affirming the county's findings
6 that the conceptual master plan application complied with DCC 18.113.070(D) because
7 .. an acceptable mitigation plan was feasible and likely to be adopted by BLM, ODFW, and
8 Thornburgh. The relevant standard of review of LUBA's determination on the adequacy
9 of the county's conclusion of compliance with DCC 18.113.070(D) is whether LUBA's
10 determination is "unlawful in substance." ORS 197.850(9)(a).
11 LUBA's opinion and order was unlawful in substance for the reasons that.
12 follow. First, the county's findings were inadequate to establish the necessary and likely
13 content of any wildlife impact mitigation plan. Without knowing .the specifics of any
I4 required mitigation measures, there can be no effective .evaluation of whether the project's
15 effects on fish and wildlife resources will be "completely mitigated" as required by DCC
16 18.113.070(D). ORS 215.416(9) requires that the county's decision approving the CMP
17 explain "the justification for the decision based on the criteria, standards and facts set
18 forth" in the decision.3 The county's decision is inconsistent with ORS 215.416(9)
3 ORS 215.416 states the process and justification for the discretionary
approval by a county of a proposed development of land. ORS 215.416(9) provides:
"Approval or denial of a permit * * * shall be based upon and
accompanied by a brief statement that explains the criteria and standards
considered relevant to the decision, states the facts relied upon in rendering
8
1 because the decision lacks a sufficient description of the wildlife impact mitigation plan,
2 and justification of that plan based on the standards in DCC 18.113.070(D). Second, that
3 code provision requires that the content of the mitigation plan be based on "substantial
4 evidence in the record," not evidence outside the CMP record. In this case, the particulars
5 of the mitigation plan were to be based on a future negotiation, and not a county hearing
6 process. Because LUBA's opinion and order concluded that the county's justification was
7 adequate despite those deficiencies, the board's decision was "unlawful in substance."
8 Nevertheless, relying in part on Meyer v. City of Portland, 67 Or App 274,
9 678 P2d 741, rev den, 297 Or 82 (1984), Thornburgh argues that the finding of feasibility,
10 . together with the condition requiring adoption of a mitigation plan, is sufficient to prove
11 that the CMP complies with DCC 18.113.070(D). In Meyer, we determined that the
12 public participatory rights in a land use hearing on a residential subdivision, then required
13 by Fasano v. Washington Co.. Comm., 264 Or 574, 507 P2d 23 (1973), were not undercut
14 by conditioning final administrative approval of the subdivision on further technical
15 studies on the individual building sites. That was because the evidentiary record of the
16 subdivision hearing was sufficient to support findings that the approval standards were
17 met, and the results of the technical studies were not necessary to reach that conclusion.
18 We held:
the decision and explains the justification for the decision based on the
criteria, standards and facts set forth."
That requirement is echoed in the county ordinance on land use hearing procedures.. DCC .
22.28.010.
9
1 "The above -quoted findings are supported by substantial evidence in
2 the record, notably a detailed geotechnical study of the area done in 1973,
3 and extensive testimony by the city's experts. Petitioners appeared andwere
4 entitled to present evidence at the public hearings upon which the city's
5 findings in this matter were based.: It is apparent therefore that the city
6 made the findings required by Code section 33.106 and that petitioners had
7 a full opportunity to be heard on the critical land use issues before the city's
8 decision became final."
9 Meyer, 67 Or App at 281782 (footnote omitted).
10 In reaching that conclusion, we noted that LUBA affirmed the city
11 subdivision approval because the city found the Iand.division to be "feasible." However,
12 we observed that LUBA's use of a "feasibility" standard in determining whether. the
13 approval standards were met was misleading:
14 "For some reason, LUBA couched its discussion of this question in
15 terms of whether- or not the city found the preliminary plan proposed a
16 'feasible' development project. Petitioners argue that 'feasibility' cannot be
-17 the applicable. standard because nearly any conceivable project may be
18 feasible from an engineering perspective if enough money is committed to
19 it. It is apparent,however, that by 'feasibility' LUBA means more than
20 feasibility from a technical engineering perspective. It means that
21 substantial evidence. supports findings that solutions to certain problems
22 (for example, landslide potential) posed by a project are possible, likely and
23 reasonably certain to succeed."
24 Id. at 280 n 5 (citations omitted).
25 Thus, Meyer instructs that a proposed land development plan must be
26 specific and certain enough to support findings that the proposal satisfies the applicable
27 approval criteria. If the nature of the development is uncertain, either by omission or
28 because its composition or design is subject to future study and determination, and that
29 uncertainty precludes a necessary conclusion of consistency with the decisional standards,
10
1 the application should be denied or made more certain by appropriate conditions of
2 approval. Another option is to postpone the decision. As suggested in Meyer, however,
3 "[a] two-stage approval process is a permissible way to make land
4 use decisions such as the ones made here, so long as interested parties
5 receive a full opportunity to be heard before the decision becomes final.
6 "Obviously, such an approval process could be used to deny
7 interested parties the full opportunity to be heard if matters on which the
8 public has a right to be heard are not decided until the second stage of the
9 process --that is, the stage of the process in which final approval of the plan
10 takes place and which occurs after public participation has come to an end."
11 Id. at 280 (citations omitted); see also Paterson v. City of Bend,. 201 Or App 344, 349,
12 118 P3d 842 (2005) ("In principle, we agree that nothing in the development code
13 precludes the city from, in effect, postponing a showing of compliance with specific
14 development criteria until the final plat approval, provided there is a showing that
15 compliance is feasible.").
16 In this case, the county's decision did not postpone a determination that the
17 project complies with DCC 18.113.070(D). The county might have, but did not, postpone
18 determination of compliance with .that standard until the final master plan approval step
19 and infuse that process with the same participatory rights as those allowed in the CMP
20 approval hearing.' Instead, the county implicitly concluded (but did not directly fmd) that
21 the nature of the wildlife.impact mitigation plan was sufficiently certain and probable to
4 In the context of this case, a determination that a wildlife impact mitigation
plan is "feasible" might be appropriate to justify postponement of any evaluation of the
application of DCC 18.113.070(D) to the plan. The determination of feasibility, however,
is not an adequate substitute for an assessment of whether a specific mitigation plan
actually complies with the standard. •
11
1 allow a present determination of consistency with the approval criterion. LUBA found
2 that the findings were "adequate" to explain compliance with DCC 18.113.070(D).
3 But the governing ordinance requires a Meyer determination of whether
4 "solutions to certain problems * * * are * * * likely and reasonably certain to succeed"--
• 5 whether the findings and conditions of the conceptual master plan approval adequately
6 support the conclusion, that "any negative impact on fish and wildlife resources will be
7 completely mitigated so that there is no net loss or net degradation of the resource" as
8 required by DCC 18.113.070(D). The adopted findings fail to make that case.
9 The wildlife impact mitigation plan was not yet composed. Although
10 Thomburgh's consultant proposed a number of offsite mitigation measures on federal
11 land, the BLM. reported that these measures needed "clarification and further
12 development." In particular, the agency asked that the effect of the development on deer
13 and elk winter range and habitats along a nearby river be clarified. It noted that "[i]t is
14 unclear what types of habitat conditions the resort intends to provide on-site compared to
15 off-site." The BLM concluded that "[sjeveral items included in the draft report would not
16 be considered appropriate off-site mitigation," including removal of grazing on the resort
17 property and from offsite mitigation areas, placing rocks on offsite mitigation areas,
18 creation of new water sources for wildlife, and closure of existing roads and trails. Thus,
19 the particular nature of the wildlife impact mitigation plan was not known at the time of
20 the CMP hearing.
21 • The county development code requires that the conceptual master plan
I2
1 application include the "methods employed to mitigate adverse impacts on [wildlife]
2 resources." DCC 18. 113.050(B)(1). That requirement allows little speculation. The
3 code mandates that the applicant submit a "proposed [wildlife] resource protection plan."
4 That requires that the submitted plan be specific enough to apply the approval standards
5 in a meaningful way. The code requirements set.out the necessary foundation fora
6 determination that "[a]ny negative impact on fish and wildlife resources will be
7 completely mitigated so that there is no net loss or net degradation of the resource." DCC
8 18.113.070(D) (emphasis added). The county's substitute of an uncertain plan, a plan yet
9 to be composed, violates those requirements.
10 The county decision was also defective for a second reason. The code
11 mandates that the approval standards be evaluated "from substantial evidence in the
12 record." DCC 18.113.070(D). That provision requires that the justification be based on
13 evidence submitted at public hearings on the application.. The county's decision, however,
14 allows the mitigation plan justification to be established by future discussions among
15 Thornburgh, ODFW, and BIM, and not on evidence submitted during the public
16 hearings. That robsinterested persons of the participatory rights allowed by the county
17 ordinance.
18 In sum, the county's conclusion that DCC 18.113.070(D) is satisfied by a
19 potential mitigation plan is legally insufficient to explain the justification for the decision
20 under ORS 215.419(9). For that reason, LUBA's decision upholding that conclusion is
21 unlawful in substance.
13
1 Thornburgh cross-petitions, challenging LUBA's comments in its decision
2 on the effect of the approved residential lot standards. DCC 18.113.060(G)(1) requires a
3 CMP to contain standards for the "minimum lot area, width, lot coverage, frontage and
4 yard requirements and building heights" as well as any solar access for structures within
5 the resort. The last sentence of DCC 18.113.060(G)(1) concludes that "[n]o lot for a
6 single -family residence shall exceed an overall project average of 22,000 square feet in
7 size."
8 Thornburgh submitted numeric standards for minimum lot areas, lot width
9 averages, lot frontages, lot coverages, lot setbacks, and building heights for eight different
10 types of lots, with the largest lot type being a minimum of 15,000 square feet in area
11 ("Type A") and the smallest lot type being at least 3,200 square feet in area ("Type H").
12 The county determined that
. 13 "[tjhe [board of county commissioners} finds that additional flexibility may
14 be needed to accommodate the planned range of living units and services.
15 For example, a lot size in excess of one acre may be necessary for a home
16 site in some cases, particularly if it is desirable to preserve rocky or unique
17 terrain. A 1,500-square-foot lot maybe appropriate for condominiums or
18 row houses surrounded by common area."
19 Before LUBA, Gould contended that this finding allowed lots that exceeded
20 the 22,000 square feet maximum prescribed by DCC 18.113.060(G)(1). After quoting the
21 county finding, LUBA said:
22 "Thornburgh argues, and we agree, that the final sentence of DCC
23 18.113.060(G)(1) is'inartfully worded.' That sentence does not impose a
24 maximum lot size of 22,000 square feet; it prohibits lot sizes that would
25 result in the 'overall project average' exceeding 22,000 square feet.
26 However, to the extent the above quoted findings.can be read to.grant
14
1 Thornburgh the 'flexibility' to propose one acre or 1,500 square foot Lots,
2 even though the approved lot dimensions at Record 5642 would not permit
3 lots that large or small, we do not believe that grant of flexibility is within
4 the county's discretion under DCC 18.133A60(G)(I). If Thornburgh can'
5 subdivide the property into whatever size lots it believes the terrain or high
6 density housing type it desires might warrant, without first amending the
7 CMP to allow such different lot sizes, the exercise required by DCC
8 18.113.060(6)(1) is a waste of time at best."
9 On review, Thornburgh contends that LUBA misread the lot standards to
10 limit "lots that large." Thornburgh points out that the development code and the
11 submission set minimum parcel sizes and do not require the adoption of maximum lot
12 areas. Thus, the approved residential lot area standards would not allow a lot less than
13 3,200 square feet in area, but would allow any lot of that size or larger in area. LUBA's
14 conclusion, however, rested on the application of the "approved lot dimension" standard,
15 which for lots of 15,000 square feet or more in area required a "lot width average" of 100
16 , feet. The application of that standard to all of the lots within the "Type A" category may
17 operate to limit the sizes of some of the lots. LUBA did not err in reaching that
18 conclusion, although it was not necessary to the determination of Gould's precise
19 assignment of error to LUBA.
20 Reversed and remanded on petition; affirmed on cross -petition.
15
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