Kukaska v. Linn County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 05-14-2014
  • Case #: 2014-004
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

Under Linn County Code 932.860 and 932.870(a), the determining factor for approval of a medical hardship dwelling is whether the applicant requires daily care; it is not necessary that the applicant meet both age and infirmity requirements.

Jones applied to Linn county to build a medical hardship dwelling on property which only had highway access through an easement over Kukaska’s property. The application was approved by the planning director, the planning commission, and the board of county commissioners over challenges by Kukaska. Kukaska appealed to LUBA, raising seven assignments of error. Kukaska argued that: (1) the county erred in determining that Jones was a “qualifying person” for the purpose of Linn County Code 932.860 based on age alone; (2) the current easement was inadequate to provide access to two dwellings; (3) the proposed dwelling would be unsuitable to maintain the rural characteristic of the area; (4) the county incorrectly classified the proposed dwelling as an “accessory” structure; (5) findings were inadequate regarding the supply of potable water to the property; (6) requiring Jones to modify the current septic system would violate a requirement that the proposed dwelling be connected to the existing system, and (7) the board of commissioners failed to address an argument that the appeal fee of $2,000 was excessive.

LUBA found the arguments regarding insufficiency of findings unavailing, deciding in each instance that the record was sufficient for the county to have made their determinations. Jones demonstrated at the hearing that she was a “qualifying person,” that there had been proper assessment of the adequacy of access and potable water, and that the additional occupants would not impermissibly raise the population density of the area. LUBA also determined that the definitions of “accessory structure” and “existing septic system” were broad enough to encompass the county’s interpretations. Finally, the Board determined that Kukaska had failed to meet his evidentiary burden necessary to make this the proper venue for the appeal fee challenge. For these reasons, LUBA rejected all seven of Kukaska’s assignments of error. AFFIRMED.