Friday, May 17, 2013/lk
Average citizens who serve as representatives on local boards and commissions are charged with rendering decisions on often contentious and legally complex issues.
In recent years, Hood River City Council members and commissioners alike have been asked to issue verdicts on far-reaching questions that have sent teams of lawyers scrambling for tiny details and complex legal language interpretations supporting their positions.
Sometimes errors occur in that process, even with extensive research and diligence by those representatives.
On May 14, in a high profile example of that phenomenon, the Oregon Land Use Board of Appeals issued a judgement in Hood River County. LUBA cited the Hood River County Board of Commissions on errors that occurred when they denied the proposed conversion of a former orchard on Exclusive Farm Use zoned land into a public park.
“Hood River Valley Parks and Recreation District is happy with the LUBA decision and we hope we can work with the board of commissioners to facilitate a positive outcome on the development of Barrett Park,” said Lori Stirn, district director of HRVPRD.
Hood River County Board of Commissioners Chair Ron Rivers provided a brief email response to the ruling.
“The commission knew that there were three possible outcomes from the LUBA decision. A remand was one of those outcomes. We will meet with our legal staff and discuss our options and our general direction from this point forward,” he said.
Rivers also predicted that the board would convene to discuss the details of the ruling in executive session following their regular meeting on May 20.
The LUBA ruling remands (sends back) the commission’s decision on Barrett Park that had reversed a previously approved conditional use permit (CUP) issued by the county planning commission in April 2012.
That CUP would have allowed the development of the park, as proposed by the Hood River Valley Parks and Recreation District.
Local orchardists Fritz and Joann Von Lubken, appealed the original planning commission CUP approval up to the County Commission. (Fritz Von Lubken did not return a call for comment.)
The commissioners then reviewed the public record and overturned the permit approval on Sept. 4, 2012 — essentially denying the development of the park.
HRVPD, the applicant agency, park developer and owner of the 31-acre property at the corner of Barrett and Alameda drives, requested the LUBA review of the county commisioners’ denial.
In reviewing that denial, LUBA found errors in the county commissioners’ legal arguments and procedural process, and have now directed the county to address those errors, opening the door again to creating a passive-use park on the site.
The district, as required, had originally presented its application for the conditional use permit under existing zoning laws and Oregon statutes. The planning commission granted a conditional use permit based on their review of applicable evidence and laws.
A public park can be allowable in the EFU zone as a conditional use under ORS 215.213 (2)(e) and ORS 215.813(2)(d), implemented by Hood River Zoning Ordinance 7.40(F). Standards under which governmental agencies or nonprofits may operate those parks are listed under ORS 215.296.
These are the laws that the county commission was charged with applying to their review of the planning commission’s decision.
Reviewing the governing laws and the conclusions reached by the commissioners as listed in their CUP reversal, LUBA identified the following missteps in the commissioners’ ruling:
- n The commission incorrectly concluded that state law requires a determination on whether the park would forever eliminate the property from future farming use.
- Specifically, the board and the Von Lubkens argued that cut and fill practices and re-distribution of topsoil during park construction would prevent a return to use as farmland in the future.
- LUBA clarified that the statute (ORS 215.296(1)) under which the Von Lubken’s appealed, provides for no such requirement that would ensure any converted farm soil be returnable to farming use.
- n The commission incorrectly determined that the full 29,000 acres of EFU-zoned land in the county should have been evaluated when determining the impact of the park on “surrounding lands,” a mandate under conditional use standards.
- The commission had argued that the “loss of farm land” would financially affect farm operations across the entire county, therefore requiring impacts on the entire valley to be reviewed. According to LUBA however, ORS 215.296(1) is not concerned with generalized impacts to the local economy.
- n The commission committed a procedural error when it relied on individual board members’ “personal knowledge” of farming matters and top soil, not already included in the public record, when issuing their denial.
LUBA did not remand on this error, but did indicate that under the May 14, 2013 ruling for a county review of their previous decision, commissioners’ personal knowledge of matters outside the public record “should play no role.”
- n LUBA highlighted that the commission decided to reverse the planning commission CUP approval instead of simply remanding it for corrections – reversal being the most serious disposition.
- Based on HRZO 61.109(G), the county is required to identify one of four specified legal errors committed by the planning commission in order to have a valid reversal; LUBA confirmed that the one qualifying legal error cited by the commission is one that LUBA determined to be without merit.
- LUBA found that the board erred when it concluded that evaluations should have been conducted on the impacts of farm practices on the subject property itself.
- LUBA states that since the park will have no remaining farm use on its property, the county could not impose ORS 215.296(1) as a condition – requiring an evaluation of the property for impacts from its own non-farm activities.
- LUBA did ask the commission to consider a remand to the planning commission (for insufficiency of findings and evidence of farming practices in lands surrounding the park) in lieu of a reversal.
Stirn noted that the possibility of proceeding with park plans would “bring the community a $494,000 grant from lottery dollars and along with our matching funds will have a positive impact on the local economy."
As to the HRVPRD planned next steps, Stirn said, “The park district will meet with our land use attorney, Michael Robinson from Perkins and Coie, and discuss our options and what the process will entail.”
The next regular Board of Commissioners’ meeting is slated for May 20 at 6 p.m. to be held at the board room of the county administrative building, 601 State Street.