Tylka v. Clackamas County ( 2024 )

No. 34 January 24, 2024 247
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Dennis TYLKA,
Petitioner,
v.
CLACKAMAS COUNTY,
Respondent.
Land Use Board of Appeals
2022093; A182331
Argued and submitted November 6, 2023.
Andres Mulkey argued the cause for petitioner. Also on
the brief was 1000 Friends of Oregon.
Caleb Huegel argued the cause for respondent. Also on
the brief was Stephen L. Madkour.
Before Tookey, Presiding Judge, Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Affirmed.
248 Tylka v. Clackamas County
TOOKEY, P. J.
Petitioner seeks judicial review of an order of the
Land Use Board of Appeals (LUBA) upholding an order of
the Clackamas County Board of Commissioners approving
an application for a dwelling permit on a lot adjacent to the
Salmon River and in a principal river conservation area
(PRCA) within a River and Stream Conservation Area over-
lay zone, asserting that the order is legally flawed and is not
supported by substantial evidence. We review LUBA’s order
for whether it is “unlawful in substance,” ORS 197.850(9)(a),
and for whether LUBA correctly applied the substantial evi-
dence standard. Stevens v. City of Island City, 260 Or App
768, 772, 324 P3d 477 (2014). A LUBA order is unlawful
in substance if it represents a mistaken interpretation of
applicable law. 1000 Friends of Oregon v. Clackamas County,
320 Or App 444, 452-53, 514 P3d 553 (2022). With respect
to a substantial evidence challenge, “where LUBA properly
articulates its substantial-evidence standard of review * * *,
we will not reverse its determination unless there is no evi-
dence to support the finding or if the evidence in the case is
‘so at odds with LUBA’s evaluation that a reviewing court
could infer that LUBA had misunderstood or misapplied its
scope of review.’ ” Stevens, 260 Or App at 772 (citing Younger
v. City of Portland, 305 Or 346, 359, 752 P2d 262 (1988)).
We conclude that LUBA’s order is not unlawful in substance
and is supported by substantial evidence, and we therefore
affirm.
The subject property is located within a Recreation
Residential (RR) zone and borders the Salmon River. The
property is approximately 20,500 square feet and is bisected
by a road. On the river side of the road, the lot is approx-
imately 5,000 square feet. Clackamas County Zoning and
Development Ordinance (ZDO) 316.03(A) allows a detached
single-family dwelling as a permitted use in the RR zone.
The disputed permit will allow construction of a dwelling on
the river side of the road and a septic system on the other
side of the road.
The proposed dwelling is in an area subject to ORS
197.307 (2019), which focuses on the development of needed
housing. ORS 197.307 (2019) provides, in part:
Cite as 330 Or App 247 (2024) 249
“(1) The availability of affordable, decent, safe and
sanitary housing opportunities for persons of lower, middle
and fixed income, including housing for farmworkers, is a
matter of statewide concern.
“(2) Many persons of lower, middle and fixed income
depend on government assisted housing as a source of
affordable, decent, safe and sanitary housing.
“(3) When a need has been shown for housing within
an urban growth boundary at particular price ranges and
rent levels, needed housing shall be permitted in one or
more zoning districts or in zones described by some com-
prehensive plans as overlay zones with sufficient buildable
land to satisfy that need.
“(4) Except as provided in subsection (6) of this section,
a local government may adopt and apply only clear and
objective standards, conditions and procedures regulating
the development of housing, including needed housing. The
standards, conditions and procedures:
“(a) May include, but are not limited to, one or more pro-
visions regulating the density or height of a development.
“(b) May not have the effect, either in themselves or
cumulatively, of discouraging needed housing through
unreasonable cost or delay.”
ORS 197.307(4) is among the provisions applicable to the
development of the subject property and requires that “a
local government may adopt and apply only clear and objec-
tive standards, conditions and procedures regulating the
development of housing.”
Clackamas County’s zoning ordinance establishes
setback requirements for development adjacent to the river,
included the subject property. ZDO 704.04(A) provides:
“The following minimum setbacks shall apply to struc-
tures exceeding 120 square feet or 10 feet in height:
“A. Structures shall be located a minimum of 100 feet
from the mean high water line of a principal river. This
minimum setback may be increased up to 150 feet from the
mean high water line to lessen the impact of development.
In determining the minimum setback, the following shall
be considered:
250 Tylka v. Clackamas County
“1. The size and design of any proposed structures;
“2. The width of the river;
“3. The topography of the land between the site and
the river;
“4. The type and stability of the soils;
“5. The type and density of existing vegetation between
the site and the river;
“6. Established recreation areas or areas of public
access; and
“7. Visual impact of any structures.”
(Emphases added.)
The ordinance thus establishes a setback for struc-
tures of “a minimum of 100 feet from the mean high water
line of a principal river,” but provides that a setback may be
increased “up to 150 feet from the mean high water line”
to lessen the impact of development. The ordinance also
requires that the minimum setback be determined under
the criteria listed in ZDO 704.04(A)(1) to (7).
The applicant’s site plan showed a setback for the
proposed dwelling of 128 feet from the river, with a deck
setback of 118 feet from the river. The county’s planning
director approved the application with a 128-foot setback
from the mean high water line of the river. In adhering to
the 128 foot setback, the planning director explained that,
because the application was for a dwelling, ORS 197.307(4)
required that only the “clear and objective” setback stan-
dard of “a minimum of 100 feet from the mean high water
line of a principal river” set forth in the first sentence of
ZDO 704.04(A) could apply, and that the county could not
consider the “subjective” criteria listed in ZDO 704.04(A)(1)
to (7), to extend the setback requirement to 150 feet.
Petitioner, a neighbor, disagreed with the 128-foot
setback and requested a hearing, contending that a setback
of 128 feet was not sufficient, because the criteria listed in
ZDO 704.04(A)(1) through (7) required a setback of 150 feet.
The hearings officer upheld the planning director’s
approval of the application at the location proposed on the
Cite as 330 Or App 247 (2024) 251
site plan, with a setback of 128 feet from the river. The hear-
ings officer’s order quoted ZDO 704.04(A)(1) through (7). The
hearings officer agreed with the planning director’s deter-
mination that, because the proposed development is a dwell-
ing, ORS 197.307(4) required application of only the 100-foot
minimum setback, as a “clear and objective” standard:
“I point here to the word ‘shall’ with respect to the minimum
100-foot setback, as opposed to the word ‘may’ with respect
to considering an increased setback (a discretionary stan-
dard) beyond the 100-foot setback that ‘shall’ be imposed.
The County correctly asserts that the 100-foot minimum
setback is a clear and objective standard, whereas impos-
ing a greater setback necessarily imposes a subjective
analysis of the stated criteria. ORS 197.307(4) specifically
provides that a local government (here, Clackamas County)
may adopt and apply only clear and objective standards
in regulating the development of housing. [ORS 197.307]
supersedes Goal 5 and related provisions of the County’s
Comprehensive Plan to the extent such provisions allow
the County to apply discretionary or subjective criteria
rather than ‘clear and objective’ standards for housing
development. Further, the County has in fact adopted a
clear and objective standard that it is applying: the mini-
mum setback of 100 feet from the mean high-water line of a
principal river that ‘shall’ be required.”
But despite concluding that the criteria of ZDO 704.04(A)(1)
through (7) were “subjective,” the hearings officer also made
findings that addressed those criteria:
“I also note with respect to this setback requirement that
the proposal actually has a 128-foot setback from the mean
high water mark of the Salmon River to the structure.
This setback appears required by the topography of the
site as there is persuasive and uncontradicted testimony
concerning an escarpment or ‘cliff’ towards the river side
leaving a buildable area that is roughly 61 feet deep on a
lot that is 50 feet wide and 100 feet deep. [ZDO 704.04(A)(3)
(topography)] The house shown on the application is 30 feet
wide by 41 feet 6 inches deep and two stories tall, with a
10-foot deck off the back, built right up to the 10-foot side
setbacks. Thus, the proposed house will be just under 2500
sq ft in size and is consistent in size with other single-
family home development in the area. [ZDO 704.04(A)(1)
(size and design)] With the required 20-foot setback to the
252 Tylka v. Clackamas County
front property line, increasing the setback to the maximum
150 feet would effectively prohibit development of the site
with a house that is consistent with the other single-family
homes in the vicinity. There is no public access or estab-
lished recreation areas at this location [ZDO 704.04(A)(6)
(public access)], and no evidence that any of the other above-
listed factors [ZDO 704.04(A)(2), (4), (5), (7)] would suggest
requiring a greater setback than the required minimum
100 feet or the proposed 128 feet. Thus, after considering
the above factors, I find requiring the minimum 100-foot
setback sufficient to meet these criteria, and find that the
proposal meets or exceeds this standard.”
Petitioner appealed to LUBA, arguing that the
county had erred in failing to determine that ZDO 704.04(A)
required a setback of 150 feet. Petitioner argued that ZDO
704.04(A) is part of the county’s comprehensive plan that,
under ORS 197.175(2),1 must be applied, irrespective of
ORS 197.307(4). Petitioner argued that three of the crite-
ria of ZDO 704.04 ((ZDO 704.04(A)(2) (width of river); ZDO
704.04(A)(3) (topography of the land between the site and
the river); and ZDO 704.04(A)(5) (type and density of exist-
ing vegetation between the site and the river)), required a
setback of 150 feet.
Petitioner also argued that the hearings officer
improperly considered whether a setback of 150 feet would
“prohibit development of the site with a house that is con-
sistent with the other single-family homes in the vicinity.”
1
ORS 197.175(2) provides:
“Pursuant to ORS chapters 195, 196 and 197, each city and county in this
state shall:
“(a) Prepare, adopt, amend and revise comprehensive plans in compli-
ance with goals approved by the commission;
“(b) Enact land use regulations to implement their comprehensive plans;
“(c) If its comprehensive plan and land use regulations have not been
acknowledged by the commission, make land use decisions and limited land
use decisions in compliance with the goals;
“(d) If its comprehensive plan and land use regulations have been
acknowledged by the commission, make land use decisions and limited land
use decisions in compliance with the acknowledged plan and land use regu-
lations; and
“(e) Make land use decisions and limited land use decisions subject to an
unacknowledged amendment to a comprehensive plan or land use regulation
in compliance with those land use goals applicable to the amendment.”
Cite as 330 Or App 247 (2024) 253
Petitioner asserted that, whether the house would be consis-
tent with other single-family homes in the vicinity is not a
criterion under ZDO 704.04(A), and that the hearings officer
therefore erred in considering that criterion.
The county responded that the hearings officer’s
order shows that, despite the hearings officer’s statement
that ZDO 704.04(A) listed “subjective” considerations, the
hearing officer nonetheless actually addressed the criteria
listed in ZDO 704.04(A), including the lot’s topography, ZDO
704.04(A)(3), the lack of established recreation areas, ZDO
704.04(A)(6), and the proposed house design, ZDO 704.04(A)(1),
and concluded that they did not require a setback greater
than 128 feet.
LUBA upheld the county’s approval. LUBA did not
address or decide whether ORS 197.307(4) prohibited con-
sideration of the criteria of ZDO 704.04(A)(1) through (7).
LUBA agreed with the county that the hearings officer’s
order shows that the hearings officer did in fact consider
those criteria. Thus, LUBA rejected petitioner’s contention
that the hearings officer erred in failing to consider them.
LUBA also held that the county’s approval was supported by
substantial evidence.
In his first assignment of error on judicial review,
petitioner challenges LUBA’s determination that the county
adequately considered the criteria of ZDO 704.04(A) and
contends that LUBA’s order is not supported by substan-
tial evidence.2 Our reading of the hearings officer’s order is
consistent with LUBA’s that, despite the hearings officer’s
statement that ORS 197.307(4) did not permit consideration
of the “subjective” criteria of ZDO 704.04(A), the hearings
officer did in fact consider them, specifically identifying sev-
eral criteria and also stating that the other factors did not
require a setback greater than 128 feet. The record supports
LUBA’s understanding of the hearings officer’s order. Thus,
we reject petitioner’s contention in his first assignment that
2
Petitioner’s first assignment states: “LUBA’s conclusion that the hearings
officer ‘in fact applied the subjective provisions’ of ZDO 704.04(A)(1)-(7) is based
on a misapplication of law and not supported by the facts in the record.” In his
first assignment petitioner combines various contentions that do not seem to
fall within that assignment. We nonetheless address the arguments that are
preserved.
254 Tylka v. Clackamas County
the record requires a remand to the county for a more com-
plete consideration of the criteria of ZDO 704.04(A).3
In his first assignment of error, petitioner continues
to assert, as he did before LUBA, that the hearings officer
also erred in noting that a setback of 150 feet would “pro-
hibit development of the site with a house that is consis-
tent with the other single-family homes in the vicinity,” con-
tending that ZDO 704.04(A) did not permit consideration of
the size of other homes in the vicinity. As LUBA correctly
reasoned in rejecting that argument, there is nothing in
ZDO 704.04(A) that prohibited the county from considering
whether the proposed dwelling would be consistent with sur-
rounding homes. In fact, it is arguable that consistency with
surrounding homes would be considered in addressing the
size and design of the proposed structure, ZDO 704.04(A)(1),
as well as its visual impact, ZDO 704.04(A)(7). Consideration
of whether the proposed development would be consistent
with surrounding homes is a plausible construction of ZDO
704.04(A), and we therefore conclude that LUBA did not err
in deferring to the county’s construction of the ordinance
to permit consideration of whether the proposed dwelling
would be consistent with surrounding homes. See Siporen
v. City of Medford, 349 Or 247, 261, 243 P3d 776 (2010) (A
local government’s interpretation of its own land use stan-
dards will be affirmed if it is a plausible construction of the
express language of the provision or provisions at issue.).
As noted, petitioner’s first assignment of error on
judicial review also includes a contention that LUBA’s affir-
mance of the hearings officer’s order is not supported by sub-
stantial evidence. He contends that substantial evidence,
along with a proper consideration of the criteria in ZDO
704.04(A)(1) through (7), require the conclusion that a 150-
foot setback would not prevent development of the site. He
argues that LUBA erred in upholding the county’s approval
3
We agree with the county that petitioner failed to preserve before LUBA
the contention that LUBA erred in affirming the county’s approval because the
hearings officer could not simply summarily address the remaining factors listed
in ZDO 704.04(A) but was required to provide explicit factual discussion and
analysis with respect each of the factors set out in ZDO 704.04(A). See Willamette
Oaks, LLC v. City of Eugene, 295 Or App 757, 437 P3d 314, rev den, 365 Or 192(2019) (preservation requirements apply to petitions for review from a LUBA
order).
Cite as 330 Or App 247 (2024) 255
in light of the county’s failure to address evidence that, before
this application, the county had always required a 150-foot
setback for properties adjacent to rivers and that the home
could be built on the portion of the site that is across the road.
The county responds that, the county having concluded that
a setback of 128 feet was sufficient to lessen the impact of the
development, there was no requirement for the county to also
consider whether a further setback, to 150 feet, was required.
LUBA concluded that substantial evidence supported the
county hearings officer’s order that a setback of 128 feet was
sufficient to lessen the impact of development. We conclude
that LUBA’s order shows that it correctly applied the sub-
stantial evidence standard in its review of the hearings offi-
cer’s order. Younger, 305 Or at 358 (“[W]here LUBA has prop-
erly understood and applied the ‘substantial evidence’ test
of ORS 197.835(8)(a)(C), a reviewing court should affirm its
order, notwithstanding the reviewing court’s disagreement
with LUBA as to whether the evidence is ‘substantial.’ ”). We
therefore reject petitioner’s first assignment of error.
In his second assignment of error on judicial review,
petitioner contends that “LUBA erred in concluding that
petitioner had failed to challenge the hearings officer’s appli-
cation of ZDO 704.04(A) * * *, and LUBA erred in failing to
address petitioner’s assignments of error that challeng[ed]
the county’s application of that provision.” Petitioner’s sec-
ond assignment appears to repeat or follow from his first
assignment of error, asserting that a remand is necessary
in light of the county’s failed application of ZDO 704.04(A).
Having rejected petitioner’s first assignment of error, we
also reject the second assignment.
We now address petitioner’s third assignment.
ZDO 704.02(C) defines the “mean high water line” as “[t]he
bank of any river or stream established by the annual fluc-
tuations of water generally indicated by physical charac-
teristics such as a line on the bank, changes in soil condi-
tions, or vegetation line.” Before LUBA, petitioner argued
that, because the river meanders past the subject property,
the mean high water line was required to be measured in
more than one location, and that substantial evidence in
the record fails to show that the mean high water line was
256 Tylka v. Clackamas County
determined in more than one location. Petitioner argued,
additionally, that the record does not show that the mean
high water line was measured by a licensed hydrologist,
that the county failed to make a determination as to the
location of the mean high water line, and, further, that the
county’s determination of a mean high water line of 128 feet
was not supported by substantial evidence. LUBA rejected
the contentions, agreeing with the county that the hearings
officer’s conclusion regarding the location of the mean high
water line was supported by the site plan and other materi-
als in the record and that petitioner did not produce any evi-
dence to undercut that evidence. LUBA further concluded:
“Nothing in the definition of mean high water line requires
its location to be established by a licensed hydrologist or by
unnamed county personnel, or requires it to be established
in more than one location relative to the river. Petitioner
has not explained why the site plan and other applicant
materials are not evidence of the line’s location, or pointed
to any evidence in the record that undercuts that evidence.”
Petitioner’s third assignment of error challenges LUBA’s
determination:
“LUBA’s conclusion that the county’s definition of ‘mean
high water line’ in ZDO 704.02(C) does not ‘require it to
be established in more than one location relative to the
river’ misinterprets and misapplies that provision of law.
Moreover, LUBA misunderstood its standard of review,
by failing to adequately address petitioner’s assignment
of error that the county’s findings regarding the location
of the mean high water line are inadequate and not sup-
ported by substantial evidence in the record.”
As we understand petitioner’s assignment, he contends that
LUBA erred as a matter of law in concluding that ZDO
704.02(C) does not require that, when a river meanders, the
mean high water line must be measured from more than
one location. We agree with LUBA that the requirement for
measurement of the mean high water line at more than one
location does not appear in ZDO 704.02(C); thus petitioner
has not established legal error.
Petitioner further challenges LUBA’s determina-
tion that the county’s order was supported by substantial
Cite as 330 Or App 247 (2024) 257
evidence, specifically with reference to evidence of the mean
high water line of the river. We review LUBA’s order to
determine whether it correctly applied the substantial evi-
dence standard. See Younger, 305 Or at 358 (stating stan-
dard). Our review of LUBA’s order leads us to conclude that
LUBA correctly understood its role in conducting its review
for substantial evidence. We therefore reject petitioner’s
third assignment of error.
Affirmed.